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J 



OUR GOYERNMENT: 



AN 



EXPLANATORY STATEMENT OF THE 

SYSTEM OF GOVERNMENT OF 

THE COUNTRY; 



PRESENTING A VIEW OF THE 



GOVERNMENT OF THE UNITED STATES, AND OF THOSE OF THE 
SEVERAL STATES ; WITH THE CONSTRUCTION OF CON- 
STITUTIONAL PROVISIONS AND A PRACTICAL 
NOTICE OF THEIR ADMINISTRATION. 



A MANUAL FOR SCHOOLS, ACADEMIES AND POPULAR USE. 



i&ecoii^ 3Stiftton, 



BY MORDECAI McKINNBY. 



"The unity of government, which constitutes you one people, is also now dear to you. 
"In proportion as the structure of a goTernment gives force to public opinion, it is ea 
that public opinion should be enlightened."— Washinoton's Fabetteli Addee88. 



essential 




PHILADELPHIA: 
PUBLISHED BY THE AUTHOR 

1856. 






Entered according to the Act of Congress, in the year 1856, hy 
MORDECAI McKIXXEY, 
In the Clerk's Office of the District Court of the United States in and for the 
Eastern District of Pennsylvania. 

S. Douglas Wyeth, Ast., Stereotvper. 
No. 7 Pear Str, Phila. 



Rohb, Pile & McElroy, Printers. 



PREFACE. 



An acquaintance with the political institutions of our country is 
so important , that it can neither be trite to recommend it as in- 
teresting and valuable, nor superfluous to oifer new aid for its at- 
tainment. 

Where there is accuracy of information, on such a subject, the 
attempt ought not to be considered an unworthy one, if in its 
method it solicits attention, familiarizes useful knowledge, or is, in 
any way, adapted to the wants of society. 

The writer would ask that the propositions, in reference to the 
general subject, contained in the title, and divisions and heads of 
the work, be considered in connection with its declared purpose 
and necessary limits. There is no pretention here to the character 
of a full and extended treatise. The plan and method were re- 
quired, it is apprehended, in order to present perspicuously the 
matter furnished, in a form suited for easy reference by all ; and as 
having, besides, the advantage of suggesting to the student or 
reader a systematic course for pursuing his inquiries on the subject. 
No one can be more inclined than the writer, to recommend to all, 
having an opportunity of acquiring it, a thorough and complete 
knowledge of the government and constitutional law of our coun- 
tiy, to be derived from the many able and profound expositions 
thereof that are extant 

It will be observed, that the view here given of our system of 

government is a practical one ; exhibiting it as actually existing and 

iii 



IV PREFACE, 

ill operation, in its several parts, rather than with respect to the 
theory of it, in the abstract ; and showing the powers and duties 
of the general government and those of the several States, as con- 
stitutionally ascertained and administered in practice, with the re- 
lative obligations of the people. 

It is with this design, that the arrangement has been adopted, 
by which the general subject is treated of, not in the order of the text 
of the federal Constitution, or of those of the States ; but under 
divisions and heads, appropriate to the real administration of our 
government and laws, illustrative of principles, and which allow of 
the introduction of a greater amount and variety of information in 
its natural place. 

In our complex political system, consisting of a general govern- 
ment, and a number of separate State governments, acting in cer- 
tain relations to it and each other, the distinction between the 
general government and the State goverc.ments is of the greatest 
moment, often being the occasion of questions of much weight and 
delicacy. It has, therefore, been made an object especially to pre- 
sent this principle, with its relative bearings, throughout the work ; 
and, it is thought, the arrangement by which the general govern- 
ment and that of the State governments are treated of separately, 
under distinct heads, is particularly suited to this end. The rela- 
tions of the States to each other are, also, thus kept in view, 

Besides what relates to constitutional provisions, and their con- 
struction, in a strict sense, there are embraced here such notices of 
Acts of Congress, the common and statute law of the particular 
States, and the ordinary civil officers, their duties and powers, as 
the nature of the subject would admit ; with the endeavor to illus- 
trate, to this extent, the principles and administration of our 
government and laws. 

The book is designed to be a Manual, for popular use, and fre- 
quent and easy reference, on various topics of common and general 



PREFACE. V 

interest ; to which order of disposition is an essential requisite. 
This plan demanded the employment of numerous divisions, titles 
and heads ; and it ought not, then, to be an objection, that in some 
instances there is a repetition of the same matter under different 
heads. 

That there should be a general knowledge, in the community, 
for practical purposes, of our institutions and laws, lies at the very 
foundation of our government. Where the political rights of all 
our citizens are equal, and every one is enabled to exert an influ- 
ence in the administration of public affairs, so much affecting the 
interests of all, they should be well informed as to their rights and 
duties, and in regard to the powers conferred upon those whom 
they place in office. There is not so much weight to be attached 
to the existence of good forms of government, or just and bene- 
ficent laws, as to their application and execution ; and many late 
events, all experience, ia our country, must seriously force upon the 
mind the consideration that the due administration of the govern- 
ment and laws depends in a great degree upon the cordial co-oper- 
ation of the people at large ; and of course, upon their intelligence 
and virtue. 

It is only a proper understanding of our civil institutions that can 
induce strong and settled attachment to their principles, and im- 
part ability for their maintenance ; compared with which all other 
impulses or sentiments in regard to them are as nothing. 

Capable of accomplishing all the ends of a free government, 
'* securing the blessings of liberty," in reference to all under their 
protection and subject to their control ; under all exigencies and 
for all time ; their efficacy, under the righteous Ruler of nations, 
is in the hands of the people. 

The propriety of inculcating this kind of information in the edu- 
cation of youth must be obvious. It is the writer's impression 
that the works published especially for this purpose have been either 



VI PREFACE. 

too technical and abstract ; or, in many instances, too simple and 
superficial. 

It seems that there are but wanting facilities of the right kind in 
order to secure the most useful attention to these subjects, among 
all classes of the community. 

An eminent jurist, and author on constitutional law, has observed ; 
* ' Constitutions are instruments of a practical nature, founded on 
the common business of human life, adapted to common wants, de- 
signed for common use, and fitted for common understandings. The 
people make them ; the people adopt them ; the people must be 
supposed to read them, with the help of common sense ; and can- 
not be presumed to admit in them any recondite meaning, or any 
extraordinary gloss." 

This work was at first issued under the title of the TJnited States 
Constitutional Manual. This second edition, in a new form, con- 
tains much additional matter, condensely arranged, and is better 
suited to general readers. 

' ' The Government of Pennsylvania, ' ' a work on a similar plan, 
and to be used in like connection, will be soon published. 

Hakrisburg, Sept. 6, 1856. 



TABLE OF CO:N"TE]SrTS. 



The Constitution of tlie United States of America. 



PART THE FIRST. 

OP THE GOVERNMENT OF THE UNITED STATES OF AMERICA. 



CHAPTER I. 



Of the Government, in general. 



1-5. Forms of civil government, in 

general. 
6-7. Government of tlie United States 

of America, its nature and form. 

8. Its principles and objects. 

9. The independence of the States. 
10-11. The Declaration of Independ- 
ence. 

12-17. The colonial Governments. 

18. The Revolutionary Government. 

19. Confederation of the States. 
20-26. Origin and nature of our sys- 
tem of government. 

27-30. Powers, in general, of the 

federal government. 
31-33. Relations of the several States 

to it, and to each other. 

34. Classification of its powers. 

35. Its powers exclusive or con- 
current. 

36. Rights secured to the States or the 
people. 

37. Powers reserved to the States or 
the people. 

38. Declared general rights and 
principles in the federal Constitu- 
tion. 

39. Certain express provisions, in the 
federal Constitution, as to the 
delegation of power to the general 
Government. 



40. Incidental powers granted to the 
general Government. 

41. Authority of the Constitution and 
laws of the United States. 

42-43. Authority of the Constitution 
and laws of the United States, and 
of those of the several States, in 
relation to each other. 

44. The general Government extends 
over the Union, as a nation. 

45. The Union intended to be perpe- 
tual. 

46. No State has a right to recede from 
the Union. 

47. Allegiance to the general Govern- 
ment and the States respectively. 
Protection. 

48. The United States of America, 
jurisdiction and territory. 

49. Powers of the general Govern- 
ment distributed among several 
departments. 

50-6. The organization and nature of 
the several departments. 

57-8. The people and the States repre- 
sented in the general Government. 

59. Territorial Governments. 

60. The District of Columbia ; the ces- 
sion thereof; its government. The 
seat of the general Government 
therein. 



vm 



CONTENTS. 



61-4. Citizens of the United States ; 
native and naturalized. 

65. The rights of citizens of one State 
in another State. 

66. Free negroes and mulattoes. 

67. Slaves. 



68-72. Aliens ; their rights ; natura- 
lization as citizens. 

74. Indians, Indian territory. 
Names of the several States. 
Names of Territorial Grovernments. 



CHAPTER 11. 

Of the Constitution of the United States of America. 



. Of a constitution of civil govern- 
ment, in general. 
I. Constitutional law. 

3. Constitution of the United States 
of America. 

4. Its adoption and ratification. 

5. Its nature. 

6. The result of concession and com- 
promise. 

7. When it went into operation. 



8. Its authority. 

9. A State cannot annul its relation 
to it. 

10. Classification of its provisions. 

11. Constitutional questions, how de- 
termined. 

12. Rules of interpretation. 

13. Its preamble. 

14. Amendments thereto. 



CHAPTER III. 



Congress of the United States of America. 



1. Legislative department of the Go- 
vernment. 

I. Power of legislation, in general. 
5-7. Two branches thereof, their re- 
lation to each other. 
). Its organization. 

Senate. 
9-10. Of whom composed. Senators. 
11-12. Vacancies, how filled. 
13. Senators, their qiialifications- 
14-15. Senators, election thereof. 
16. Senators, present number thereof. 
17- Equal representation of the sever- 
al States. 

18. One-third of the Senators elected 
every two years. 

19. Senators, term of service ; in case 
of vacancy. 

20-21. Vice-President presides ; his 
power ; his casting vote. 

22. Senate, may sit in recess of Con- 
gress, to act on executive business. 

23: Organization thereof. 

24-25. Appointments of office. 

26-7. Impeachments. 

28. Nature of an impeachment. 



29-32. What officers may be im- 
peached. 
33. Impeachment, how preferred. 
34-35. Judgment, on conviction. 

36. For what offences. 

37. Organization of Senate for trial 
of an impeachment Proceedings 
on an impeachment 

38. Power of the Senate as to treaties. 
Treaties, the supreme law. 

House of Repkesentatives. 

39. Of what number composed. 

40. Right of suffrage in electing Re- 
presentatives. 

41. Representatives, their qualifica 
tions. 

42-46. Appointment thereof. 

47-50. Representatives, their election. 

51-2 Present ratio and number of 

Representatives. 
53-55. The Speaker. Its officers. 

56- Territorial Delegates. 

57- Representatives, times of election. 
58 Representatives, term of office. 
59. Organization of the House of Re- 
presentatives. 



CONTENTS, 



IV 



Of the Members of Congress. 
60-Gl. Oath of office. 
62-63. Privilege from arrest or civil 

suit. 
64-65. Freedom of speech or debate. 
66-69. Incompatiblity of office. 

70. Compensation. 

71. Interest in public contracts pro- 
hibited. 

Time of meeting of Congress, and its 
adjournments. 

72-74. Time and place of assembling 

of Congress. 

President may convene. 
75-76. Adjournment of Congress. 

Separate duties and powers of each 
House. 

77-78. As to the election of its mem- 
bers. Contested elections. 

79. Quorum. 

80. The majority to decide. 
81-85. Election of officers. 

86. Rules of proceeding. 

87. To sit with open doors. 

88. Journal. 

89-90. Yeas and nays. 

91. Punishment of members. 

92. Expulsion of members. 

93. Punishment for contempt. 

94. Adjournment. 

95. Bills for raising revenue. 



Of the duties and powers op Con- 
gress. 

97 



The powers of Congress limited. 
Express general limitation, in 
the federal Constitution. 

98. Certain powers expressly pro- 
hibited. 

99. No power contrary to any pro- 
vision of the federal Constitution. 

100. Every constitutional power com- 
plete. 

101. Division of the powers of 
Congress, as enumerated or inci- 
dental, as exclusive or concurrent. 

102-6. Nature of incidental powers. 
107. Nature of resulting powers. 
108-113. Exclusive or concurrent 

powers, their nature. 
114. Powers relate to national objects. 
115-7. Power as to revenue, taxes. 



118. Taxes ; imposts, excises, 

119. Taxes direct and indirect. 

120. Apportionment of direct taxes. 

121. Indirect taxes to be uniform. 

122. Customs or imposts, how laid 
and collected. 

123. Taxes upon property in a Dis- 
trict or Territory. 

124. Power to lay duties for the pro- 
tection of domestic manufactures 
and produce. A tariff'. 

125. Power to establish a national 
bank. 

126. Revenue bills to originate in the 
House of Representatives. 

127. Prohibitions on Congress. 
No tax on exports. 

No preference of the ports of any 
State. 

128. Prohibitions on the several 
States. 

No duties on imports or exports. 
No tonnage duty. 

129. Power of the several States, to 
lay and collect taxes. 

130. Drawing money out of the Trea- 
sury. 

131. Account of receipts and expendi- 
ture of public money to be pub- 
lished. 

132. Power to borrow money. 

133-5. Power to regulate commerce- 
Treaties regulating commerce. 
Commerce with foreign nations. 
Embargoes. 

Importation of Slaves. 

136. Commerce among the several 
States. 

137. Commerce with the Indians. 

138. Navigation laws. 

139. Power to naturalize aliens- 

140. Privileges of citizens. 

141-3. How aliens may become citi- 
zens. 
145. Power to enact bankrupt laws. 
146-8. Bankrupt laws. 

149. Bankrupt laws of a State. 

150. Coining money. Currency. 
151-2. Prohibition on the several 

States. 

153. Counterfeiting the securities of 
the United States. 

154. Weights and measures. 

155. Post offices and post roads. 

156. Copy rights and patent rights. 



CONTENTS. 



157. Piracies and felonies on tlie Mgli 

seas. 
158-61. Crimes and offences against 

the law of nations. 
162. Offences against the law of 

nations. 
163-4. Power to declare war. 

165. Prohibition on the several States. 

166. Array and nary. 
Prohibition on the several States. 

167. Military Academy. 
168-74. Power as to the militia. 

To call out. 

To organize and discipline. 

To arm and govern. 
175-6. Seat of Government. 

Legislation over District of 

Columbia, &c. 
177-9. Treason and the punishment 

thereof. 
180-1. Territory and other property 

of the United States. 

182. Power to purchase and acquire 
foreign territory. 

183. Legislation over public territory 
and property. 

184-6. Territorial Governments. 
187. Admission of new States into 
the Union. 



188. Guaranty of republican form of 
government to every State. 

189. New States out of territory ac- 
quired of a foreign nation. 

190. Restriction of slavery as to ad- 
mission of new States. 

191. Admission of a foreign country 
as a State. 

192. General provisions as to the 
powers of Congress. 

193. State acts and records, their ef- 
fect in other States. 

Acts of Congeess. Laws of the 
United States. 

194. How laws may originate in 
Congress. 

195. How laws of the United States 
may be enacted. 

196-7. Every bill, &c. , to be present- 
ed to the President of the United 
States. 
His approval or disapproval. 

198-9. The mode of proceeding, in 
enacting laws, in Congress. 

200-2. Authority of Acts of Congress. 
Eepeal thereof. 

203-5. When they take effect. 

204-9. Maybe declared unconstitu- 
tional and void. 



CHAPTER IV. 



Of (he poicers prohibited to Congress 

government. 



and the federal 



1-3. Of powers prohibited, in general. 
4-7. As to the importation of slaves. 

Importation of slaves from foreign 

countries punished as piracy. 
8-9. As to the writ of habeas corpus. 

Explanation of the writ. 
10-12. As to hills of attainder. 

Explanation. 

13. As to ex post facto laws. 
Explanation. 

14. As to taxes or duties. 
Capitation or direct taxes to be in 
proportion to the nu-mber of 
taxables, &c. 

15. No tax on exports. 



16. No preference of one State over 
another. 

17. As to drawing money from the 
treasury. 

18. Appropriations for raising and 
supporting armies. 

19. As to titles of nobility. 

20. As to the establishment of reli- 
gion, and the exercise thereof. 

21. As to the freedom of speech and 
of the press. 

22. As to the right of petition. 

23. General provision of the federal 
Constitution as to powers not 
delegated. 



CONTENTS. 



XI 



CHAPTER V. 



Of the powers prohibited to the several States. 



1. Of the prohibitions, in general. 

2-4. The prohibition express, or im- 
plied, absolute or qualified. 

5-7. Powers in general Government 
exclusive or concurrent, 

8. State law contrary to federal 
Constitution void. 

9. Making treaties or alliances, 

10. Engaging in war, &c. 

11. Keeping troops, &c. 



12. Coining money, or emitting bills 
of credit, &c. 

13-5. Laws impairing contracts, con- 
struction of this prohibition. 

16. Ex post facto laws, 

17. Bills of attainder. 

18. Titles of nobility. 

19. Duties on imports or exports. 

20. Duties on tonnage. 

21. Fugitives from justice. 



CHAPTER VI. 

Of certain special rights and privileges, expressly secured to 
the several States, and the citizens thereof, 
by the federal Constitution. 



1-4. Nature of these rights and 

principles. 
6-6. As to the public acts and records 

of each State. 
7. Rights of citizens of each State 

in the others. 
8-9. As to fugitives from justica. 



10. As to fugitives from labor or 
service. 

11. As to a republican government in 
each State. 

12. Protection of each State against 
invasion ; against domestic vio- 
lence. 



CHAPTER VII. 

Of certain general principles and declarations of rights, con- 
tained in the federul Constitution. 



1-7. Nature and object of these pro- 
visions, their authority and force. 

8, Writ of habeas corpus. 

9. Trial by jury. 

10. Searches and seizures. 

11. Warrants. 

12. Trial by indictment. 

13. The rights of an accused person, 

to be informed of the cause of 
his accusation. 

To be confronted with the wit- 
nesses against him. 

To have process for his witnesses. 

To have the aid of counsel. 

Not to be twice put in jeopardy 
of life or limb. 



13. Not compelled to be witness 

against himself. 

14. Protection by "due process of 
law " 

15. Excessive bail. 

16. Excessive fines and cruel punish- 
ments. 

17. Security of private property. 

18. Right of the people to bear arms. 

19. Quartering of soldiers upon pri- 
vate persons. 

20. Reservation of powers to the 
States respectively, or to th« 
people. 



CONTENTS, 



CHAPTER YIIL 



Of the President of the United States, Vice President, Execu' 

tice officers. 



1-7. Executive department of fed- 
eral government, in general. 

8. Qualifications for President. 

9. Mode of election. 
Presidential electors. 
Qualifications. 

10. Appointment or election, 

11. Time of choosing. 

12. Time of their voting. 
Electoral Colleges. 
Vacancy therein. 

12-4. Mode of their voting, 
15-6. When the House of Represen- 
tatives is to elect. 

17. When no election, Vice President 
to act as President. 

18. Time foT opening votes of electors 
&c. 

19. Provision in case of no election 
or choice of President or Vice 
President. New election. 

20. Duration of office, 

21. Re-election. 

22. Oath of office. 
23-4. Compensation. 

25. Power as to the army and navy, 

26-7. Power as to the militia. 

28-9. Power of pardon and reprieve, 

30-1. Consulting power. 

32-4. Power as to treaties. 

35-9. Power as to appointments to 

office. 
40^. As to removal of officers. 
45-6, Power as to bills of Congress; 

Ms veto power, 
47. Power to convene Congress. 
48- Power to adjourn Congress. 

49. Duty to give information to 
Congress. 

50. Power to receive ambassadors. 
51-2. To take care that the laws be 

faithfully executed. 
53. Impeac hm ent of the President. 
54-6. Vacancy in office, how filled. 

Vice Peesident of the United States, 
§7, Election of- 



58. Qualifications, 

59. Term of office. 

60. Compensation. 

61. To be President of the Senate. 

62. When to act as President of the 
United States. 

63. Impeachment. 

64. Vacancy in office, how filled. 

Failure to elect or choose. 

Executive officers of the United* 
States. 

65. Officers classed as executive and 
judicial. 

And the executive, as civil and 
military. 

66. Officers, how created- 

67-70. Appointment, and removal of, 
71-72. Commissions. 

73. As to religious tests. 

74. Oath of office. 

75. Impeachment. 



Executive Depaetment, 



76. 



77, 



Heads of Departments. 

Appointment. 

Cabinet of the President of the 
United States. 

State Department. 

78. Treasury Dep-artment. 

79-81. Design and nature. 

Officers and clerks- 

82. War Department. 

83. Navy Department. 

84. Armies. 

85. Post Office Department. 

86. Ambassadors, &g, 

87. Consuls. 

88. Department of the Interior. 
89-91. Districts of the States, and 

officers therein. 

92, Titles of office, 

93. Territorial Government. 

94-5. Provisions relative to executive 
officers and clerks,- 



CONTENTS. 



:iiii 



CHAPTER IX. 

Of the Judiciary of the United States. 



i. The judicial power of the federal 
government. 

2. Nature and powers of the judicial 
department. 

3. A co-ordinate department. 

4. Jurisdiction, in general. 

5-6. Power to declare a law or act 
of government void as unconsti- 
tutionaL 

7. Decision of the Supreme Court 
on constitutional questions final. 

5. Federal judiciary the authorized 
interpreter of the constitution. 

9. The judiciarj-- a check upon the 

other departments and the State 

governments. 
10. Independence of judiciary. 
11-2. Jurisdiction, in general. 
13-6. Jurisdiction civil or criminal, 

original or appellate. 
17-21. Mode of exercising appellate 

jurisdiction. 
22. Facts tried by a jury not to be 

re-examined. 
23-32. Classes of eases to which the 

judicial power of the United 

States extends. 

33. Criminal jurisdiction of the courts 
of the United States- 

34. Classes of offences against the 
United States. 

35. Civil jurisdiction of the federal 
courts. 

36. Jurisdiction exclusive or con- 
current. 

37. Power to issue judicial writs. 

38. The common law, in the federal 
courts. 

39. Trial by jury. 

40. Rights of accused persons. 



45 



46 



41-2. The courts of the United States, 
in general. 

43. The several federal courts. 

44. Distribution of the judicial au- 
thority. 

The Senate a court of justice, in 

the trial of impeachments. 

Judges of the federal courts how 

appointed. 
47-8. Tenure of office. 
49-51. Compensation. 
52. Impeachment. 
53-76. Supreme Court of the United 

States, organization and jurisdic- 
tion. 

It decision final on constitutional 

questions. 
77-82. Circuit courts of the United 

States, their organization and 

jurisdiction. 
83-6. District Courts of the United 

States. 

87. Courts in the Territories of the 
United States. 

88. Courts in the District of Cali- 
fornia. 

89. Court of Claims. 

90-1- Attorneys and counsellors-at- 
law. 

92. Attorney General of the United 
States. 

93. District Attornys of the United 
States, 

94-7. Marshals. 

98. Graols and prisons^ 

99. Court houses. 

100-2. Jurisdiction of State courts 
and magistrates under Acts of 
Congress. 



CONTENTSo 



PART THE SECOND 



OF THE GOVERNMENTS, IN GENERAL, OF THE SEVERAL STATES. 



CHAPTER I. 



Of the governments, in general, of the several States. 



1. Eacli State has a gotemment 18. 
within itself. 

2. Each State to be considered in 17. 
respect to its relations to the 18. 
Union and to every other State. 

3. Each State a republic. 

4. General principles of government 19. 
in each State. 

5. Principle as to the end of govern- 20. 
ment. 

6. Principle of representation. 21, 

7. When the several States became 
independent. 22. 

8. Each State has a written Consti- 23. 
tution. 

9. The nature of the relations of the 24. 
States to the general government, 
and to each other. 

10. Powers of government reserved 
to the States severally. 25. 

11. Powers prohibited to the States, 
and the people. 26. 

22. A State cannot nullify a constitu- 27. 
tional Act of Congress. 

13. Certain obligations and conces- 
sions of the several States, to 28. 
each other State. 

14. The objects, in general, of the 29, 
general government and of the 
several State governments res- 
pectively. 

lb. A State cannot secede from the 
Union« 



The States not foreign to each 
other. 

Each State, how far sovereign. 
The nature and principles of th© 
Constitutions of the several 
States. 

Separation of the departments 
of government. 

Classification of the provisions 
of the State Constitutions. 
The State governments of limited 
powers. 

Rule of constriaction. 
Powers concurrent with those of 
the general government. 
Powers of government distributed 
among three departments ; the 
legislative, executive and judi- 
cial. 

The departments independent of 
each other. 

The departments co-ordinate. 
Each department the representa- 
tive of the people, deriving its 
power from them. 
Constitutional questions to be 
decided by the judiciary. 
Alteration and amendment of a 
State Constitution. 
Constitutional provisions rela- 
tive thereto. 
Principles relative thereto. 



CONTENTS. 

CHAPTER 11. 

Of the municipal law, in general, of the several States. 



10. 

11. 

12. 
13. 
14. 

15. 
16. 



Municipal law, defined. 
Written or statute law. 
Constitutions. 
Treaties. 
Statutes. 

Statutes, public or private. 
When a statute takes effect. 
The latest statute takes effect. 
Repeal of a statute which repeal- 
ed another. 

A statute may be declared uncon- 
stitutional and void. 
Common or unwritten law, de- 
fined. 

Its application in this country. 
Equity, or chancery law. 
Its adoption in this country. 
The law of nations defined. 
Part of the law of this country. 



Divisions, and definitions, in law. 

17. Rights and wrongs. 

18. Rights of persons, and rights of 
things. 

19. Private wrongs and public wrongs. 

20. Persons natural and artificial. 

21. Personal rights, absolute or rela- 
tive. 



22. Absolute rights ; personal liberty, 
personal security and personal 
property. 

23. Persons, public or private. 

24. Corporations, definition. 

25. Aggregate and sole. 

26. Ecclesiastical and lay. 

27. Eleemosynary and civil. 

28. Public and private. 

29. Cases of private corporations. 
30- Leading properties of a corpora- 
tion. 

31. Corporation, how created. 

32. Power of Congress to create a 
corporation. 

33. Persons, adults and infants. 

34. Persons, males and females. 

35. Citizens and aliens. 
Free colored persons. 



37. Slaves. 

Division of Time. 

38. A year, in law. 

39. A month, in law. 

40. A day, in law. 

41. Territorial divisions, in general. 



CHAPTER III. 

Of the Declaration of Bights, in a State. 



1. Definition. 

2. Nature of these rights. 

3. Declarations of these rights, how 
made. 

4. From the earliest period. 

5. Declaration of Independence. 

6. Such rights, how declared in the 
Constitution of the United States. 

7. Authority and force of such Bills 

of Rights. 

8. The olajects, in general, of such 
Bills of Rights. 

9. Their importance. 

10. Equality of rights- 

11. Declared in the Declaration of 
Independence. 



12. Origin and object of civil govern- 
ment. 

13. Importance of fundamental prin- 
ciples. 

14. Supreme power of the people. 

15. Internal government and police 
of a State. 

16. Distribution of the powers of go- 
vernment. 

17-8. Religious liberty and rights of 

conscience, 
10. As to taking oaths. 

20. As to afiinnations, in law. 

21. Religious tests. 

22. Religious toleration. 

23-5. Hereditary titles and privileges. 



CONTENTS. 



26. Liberty of speech and the press. 
27-8. Law of libels. 

29. Eight of the people to assemble. 

30. Right of petition. 

31-2. Security of property from pub- 
lic use- 

33-4. The right of eminent domain 
in a government. 

35. Private property and vested 
rights inviolable. 

36. Security of contracts. 

37. JEx post facto laws. 

38. Bills of attainder. Attainder. 

39. Habeas corpus. 

40. Warrants, searches and seizures. 

41. Bail, in criminal cases. 

42. Indictments. 

43. Eight of the accused in criminal 
cases. 

44. Treatment of persons in gaol. 

45. Trial by jury. 

46. No commission of Oyer and 

Terminer. 

47. Fines and punishments. 

48. Hearing in court, in person or 
by counsel. 



49. Right of suffrage. Elections. 
50-1. Mode of voting, at elections. 

52. Tenure of ofB.ce. 

53. Eligibility to office. 

54. Perpetuities and monopolies. 

55. Corporations. 

56. Banks. 

57. Taxes. 

58. Right to be bear arms. 

59. Militia. 

60. Standing armies. 

61. Quartering of soldiers. 

62. Martial law. 

63. Subordination of military power. 

64. Imprisonment for debt. 

65. Education. 

66. Promulgation of the laws. 

67. Suspension of the laws. 

68. Suits against the State. 

69. Slavery and servitude. 

70. Servitude and apprenticeship. 

71. Administration of justice. 

72. Right of emigration. 

73. Right of premogerdture. 
74 Entailments. 

75. Reserved rights of the people. 



CHAPTER TV. 

Of the Legislatures of the several States. 



1 . Legislative power in a State. 

2. Vested in a Legislature, &c. 

3. The two branches of a State 
Legislature, their powers, and 
mode of acting, &c. 

4. The power of a State Legislature 
in general. 

5. Power to repeal laws. 

6. Number of members. 

7. Apportionment of members. 

8. Qualifications of members. 

9. As to clergymen, &c. 

10. As to persons convicted of of- 
fences. 

11. As to duelists. 

12. As to defaulting collectors of 
money, &:c. 

13. Incompatibility of offices. 
Member of Congress or United 
States officer not eligible. 

14-6. Certain State officers not 
eligible. 



17. Election of members. 
18-9. Oath of office. 

20. Oaths of office in particular 
States. 

21. Term of service. 

22. Time of meeting. 

23. Power to compel attendence. 

24. Adjournment. 

25. Privilege of members from arrest. 

26. Freedom of speech or debate. 

27. Compensation of members. 

Separate powees and duties of each 
House. 

28. Greneral powers and privileges. 

29. To judge of the election and 
qualifications of its members. 

30. Quorum. 

31. Officers. 

32. Rules of proceeding. 

33. Power to punish its members. 



CONTENTS. 



34. Expiilsion of members. 

35. Contempt. 

36. To sit with open doors. 
47. Journal. 

38. Yeas and nays. 

39. Originating of laws. 
Prohibitions on members. 

40. Adjournment. 

41. Vacancies. 

42. Right of protest. 



General duties and powers of the 
State Legislatukes. 

43. Powers and duties declared by 
the State Constitutions. 

44. Their powers only limited. 

45. Restrictions of their powers. 

45. Limitations of their powers by 
the federal Constitution. 

46. Their powers granted, express or 
implied. 

Their powers, how granted, in 
the State Constitutions. 

47. The limitations of their powers, 
how made. 

48. Rule of construction as to their 
powers. 

49. Their powers derived from general 
legislative authority, or specific- 
ally granted. 

50. The general and necessary powers 
of a Legislature. 

51. How powers are prohibited to the 
Legislatures. 

52. What powers exercised by them 
concurrently with Congress. 

53. Relations of a State to the general 

government and to national ob- 
jects. 

54. Rules of construction as to the 
powers of Congress and State Le- 
gislatures. 



79. 



Election of Senators and Repre- 
sentatives in Congress. 

Appointments to office. 

Impeachments. 

Originating of laws. 

Revenue : Taxes. 

Objects of taxation. 

Appropriation of money. 

State debts and loans. 

Corporations. 

Currency. 

Banks. 

Treasury, State Treasurer. 

Education. 

Diffusion of knowledge. 

Benevolent asylums, and institu- 
tions. 

Lotteries. 

Divorces. 

Rights of married women. 

Debtor's property. Homestead. 

Interest for money: Usury. 

Private laws. 

Suits against the State. 

Taking private property for public 
use. 

Slaves. Servants. 

Free negroes and mulattoes. 

Entailments. Right of primo- 
geniture. 

Dueling. 

Arbitration. 

Internal improvements. 

Right of accused persons. 

Rejected bills in the Legislature 

Titles of laws. 

Power of the Governor or Coun 
cil, as to legislation. 

Mode of enacting laws. 

Publication of the laws of a State 
Evidence thereof. 
Promulgation of the laws. 

Revision of the laws. 

Amendments of the Constitu 
tion. 



STlll 



CONTEXTS. 



CHAPTER V. 

Of the Governors and executive dex)artments of the several 

States. 



1. Executive department of a State. 

2. Its nature and objects. 

3. Vested in a Governor of tlie State. 

4. Executive Councils. 

5. Executive department possessed 
of limited powers. 

6. Tlie Governor the representative 
and organ of tlie State. 

A State administration. 

Election of a Governor. 

Ele-ctioa of Executive Council. 

Term of office of a Governor. 

Qiialifications. 

Compensation. 
13^. Duties and powers in general. 
15. Duty and power as to tlie Legis- 
lature. 

Power as to Legislation ; veto 

power. 

Communications to tlie Legisla- 

lature ; messages. 



16 



17. 



IS. Consulting power. 

19. Military power. 

20. To be conservator of tlie peace, i 

21. Power of appointment to office. 

22. Power to remove officers. 

24. Power in case of vacancies in Con- 
gress. 

25. Fugitives from justice. 

27. Impeaclunent and removal from 
office. 

28. Registry of tlie acts and proceed- 
ings of a Governor. 

26. Authentication of his acts. 

30. Power of Legislature as to Ms 
acts. 

31. Secretary of a Governor. 

32. Vacancy in the office. 

33. Lieutenant-Governor. 

34. Executive departments of a State. 



CHAPTER YI. 



Of the Courts and Judiciary of a State. 



1. The judiciary a part of the gov- 
ernment of a State. 

2. Judicial department distinct from 
the others. 

3. Co-ordinate and independent. 

4. Nature of its powers- 

5. Its powers vested in the courts of 
justice. 

6. Courts of record and not of 
record. 

7. Courts of civil jurisdiction and of 
criminal jurisdiction. 

8. Courts of equity or chancery ju- 
risdiction. 

9. The ordinary courts in a State. 

10. Organization of appellate or revi- 
sory courts. 

11. Organization of courts of Com- 
mon Pleas, or county courts. 



12. Jurisdiction of State courts under 
the laws of the TT. States. 

13. State courts may treat laws of the 
U. States or a State, as unconsti- 
tutional and void. 

14. Appeal from a State court to the 

Supreme Court of U. States. 

15. Concurrent jurisdiction of federal 
and State courts. 

16. Federal courts within a State. 

17. Constitutional principles in the 
administration of justice. 

IS. Judses of courts. Appointment. 
IS. Term of office. 

20. Incompatibility of office. Restric- 

tions as to being attorney or 
counsel. 

21. Salaries. 

22. Impeachment. 



23. Removal from office. 

24. Duty as to giving opinions to the 
Legislature. 

25. Required to file reasons for opi- 

nions. 

26. Justices of the Peace. 



CONTENTS. xix 




27. Aldermen. 


the 


28. Prothonotaries and clerks of the 




courts. 


opi- 


29. Attorneys at law. 




30. Sherifls and Coroners. 




31. Constables. 



CHAPTER VII. 



Of a State and State officers ; and counties, townshi^is, cities 
and boroughs, and the officers thereof. 



1. A State as a government is a mu- 
nicipal body politic. 

2. State Seal. 

3. Prosecutions at law. 

4. Process. 

5. Citizens of a State ; Immigrants. 

6. Oath of allegiance. 

7. Census and enumeration of in- 
habitants. 

OFFICERS IN GENERAL. 

8. Appointment and election. 

9. Constitutional offices. 
10-1. Offices established by law. 

12. Vacancies, how filled. 

13. Classification of officers. 

14. Qualifications for office. 

15. Duelist disqualified. 

16. Religious Sentiments. 

17. Bribing at elections. 

18. Disqualification from crime. 

19. Clergymen disqualified for office. 

20. Qualifications of electors ; right 
of suffrage- 

21. Privilege of electors. 

22. Elections. 

23. Oaths of office. 

'M. Term and duration of office. 

25. Commissions. 

26. Incompatibility of offices. 

27. Re-eligibility to office. 

28. Impeachment. 

29. Removal from office. 

STATE AND STATE OFFICERS. 

30. State officers, nature of offices, 
civil or military ; judicial. 



31. General executive department of 
a State government. State admi 
nistration. 

32. Taxation and revenue. 
33- State loans and stocks. 

34. Secretary of State ; Deputy Se- 
cretary of State. 

35. State Treasurer. 

36. State Auditor or Comptroller. 
37-8. Land office. 

39. Commissioners of Canals and 
Railroads. 

40. Superintendent of Common 
Schools. 

41. Military affairs. 

COUNTIES AND COPNTY OFFICERS. 

42. Territorial divisions of a State. 

43. Counties, how formed. Counties 

are bodies politic. 

44. County taxes and expenditures. 

45. Courts of justice. 

46. County officers. 

47. County Commissioners or Trus- 
tees. 

48. County Treasurer. 

49. Register, Recorder of Deeds. 

50. Sherifi' and Coroner. 

51. Prosecuting Attorney. 

52. Directors of the Poor. 

53. County Surveyors. 

54. County Auditors. 

55. Notaries Public. 

TOWNSHIPS AND TOWNSHIP OFFICEES. 

56. Townships, how erected. 

57. Townships bodies politic. 



XX 



CONTENTS. 



58, 
59. 
60. 
61. 
62. 
63. 
64. 
65. 
66. 
67. 



69. 
70. 



Township officers. 
Election. Eligibility. 
Oath of office. 
Township taxes- 
Trustees, Selectmen, Supervisors. 
Supervisors of Roads. 
Directors of the Poor. 
Assessors of Taxes. 
Collectors of Taxes. 
Township Clerk. 
School Directors. 
Common Schools. 
Township Auditors. 
Justices of the Peace. 



71. Constables. 



72. Incorporation. Government. Ter- 
ritorial divisions. 

73. City officers. 

74. State and county officers. 

75. Mayor ; Mayor's Court. 

76. Aldermen. 



77. Officers of a borough. Incorpora- 
tion. 



CONSTITUTION 



OF THE 



UNITED STATES OF AMERICA, 



WE, the people of the United States, in order to form a more 
perfect Union, establish justice, insure domestic tranquillity, provide 
for the common defence, promote the general welfare, and secure 
the blessings of liberty to ourselves and our posterity, do ordain 
and establish this Constitution for the United States of America, 

ARTICLE I. 

Section I. All legislative powers, herein granted, shall be 
vested in a Congress of the United States, which shall consist of a 
Senate and House of Representatives. 

Section II. — 1. The House of Representatives shallbe compos- 
ed of members chosen every second year, by the people of the several 
States ; and the electors in each State shall have the qualifications 
"equisite for electors of the most numerous branch of the State 
legislature. 

2. No person shall be a Representative, who shall not have 
attained to the age of twenty-five years, and been seven years a 
citizen of the United States, and who shall not, when elected, be 
an inhabitant of that State in which he shall be chosen. 

3. Representatives and direct taxes shall be apportioned 
among the several States which maybe included within this Union, 
according to their respective numbers, which shall be determined by 
adding to the whole number of free persons, including those bound 
to service for a term of years, and excluding Indians not taxed, 
three-fifths of all other persons. The actual enumeration shall be 
made within three years after the first meeting of the Congress of 
the United States, and within every subsequent term of ten years, 
in such manner as they shall by law direct. The number of Re- 
presentatives shall not exceed one for every thirty thousand, but 
each State shall have at least one Representative ; and, until such 



2§ coNSTirmoN or the 

enmneration shall be made, the State of ^N'ew Hampshire shall be 
entitled to choose three, Massachusetts eight, Rhode Island and 
Providence Plantations one, Connecticut five, Xctv York six, Xew 
Jersey four, PennsTlrania eight, Delaware one, Maryland six, 
Virginia ten, l^Corth Carolina five, South Carolina fire, and G-eorgia 
three. 

4. When vacancies happen in the representation from any 
State, the executive authority thereof shall issue writs of election, 
to fill such vacancies. 

5. The House of Representatives shall choose their Speaker, 
and other ofl&cers, and shaU have the sole power of impeachment. 

Section III. — 1. The Senate of the United States shaU be 
composed of two Senators from each State, chosen by the legisla- 
ture thereof for six years ; and each Senator shall have one vote. 

2. Immediately after they shall be assembled, in consequence 
of the fii'st election, they shall be divided, as equally as may be, 
into three classes. The seats of the Senators of the first class 
shall be vacated at the expiration of the second year ; of the 
second class at the expiration of the fourth year ; and of the third 
class at the expiration of the sixth year ; so that one-third may be 
chosen every second year. And if vacancies happen by resigna- 
tion, or otherwise, during the recess of the legislature of any 
State, the executive thereof may make temporary appointments, 
until the next meeting of the legislature, which shall then fill such 
vacancies. 

3. ']So person shall be a Senator, who shall not have attained 
to the age of thirty years, and been nine years a citizen of the 
TJnited States, and who shall not, when elected, be an inhabitant 
of that State for which he shall be chosen. 

4. The Tice President of the United States shall be President 
of the Senate, but shall have no vote, unless they be equaJly 
divided. 

5. The Senate shall choose their other officers, and also a 
President pro tempore, in the absence of the Tice President, or 
when he shall exercise the office of President of the United States. 

6. The Senate shall have the sole power to try all impeach- 
ments. When sitting for that purpose, they shall be on oath or 
af&rmation. When the President of the United States is ti-ied, 
the Chief Justice shall preside. And no person shall be convicted 
without the concurrence of two-thirds of the members present. 

7. Judgment in cases of impeachment, shall not extend further 
than to removal from office, and disqualification to hold and enjoy 
any office of honor, ti'ust or profit, under the United States ; but 
the party convicted shall, nevertheless, be liable and subject to 
indictment, trial, judgment and punishment, according to law. 



UNITED STATES. 23 

Section IV. — 1. The times, places aud manner of holding 
elections for Senators and Representatives, shall be prescribed in 
each State, by the legislature thereof; but the Congress may at 
any time, by law, make or alter such regulations, except as 'to 
the places of choosing Senators. 

2. The Congress shall assemble at least once in every year, 
.ind such meeting shall be on the first Monday in December, unless 
they shall, by law, appoint a different day. 

Section Y. — 1. Each House shall be the judge of the election, 
returns and qualifications of its own members, and a majority of 
each shall constitute a quorum to do business ; but a smaller num- 
ber may adjourn from day to day, and maybe authorised to compel 
the attendance of the absent members, in such manner, and under 
such penalties, as each House may provide. 

2. Each House may determine the rules of its proceedings, 
punish its members for disorderly behaviour, and, with the con- 
currence of" two-thirds, expel a member. 

3. Each House shall keep a journal of its proceedings, and 
from time to time publish the same, excepting such parts as may, 
in their judgment, require secrecy ; and the yeas and nays of the 
members of either House, on any question, shall, at the desire of 
one-fifth of those present, be entered on the journal. 

4. Neither House, during the session of Congress, shall, with- 
out the consent of the other, adjourn for more than three days, 
nor to any other place, than that in which the two Houses shall be 
sitting. 

Section VI. — 1. The Senators and Representatives shall 
receive a compensation for their services, to be ascertained by law, 
and paid out of the treasury of the United States. They shall in 
all cases, except treason, felony, and breach of the peace, be 
privileged from arrest during their attendance at the session of 
their respective Houses, and in going to, and returning from the 
same ; and for any speech or debate in either House, they shall 
not be questioned in any other place. 

2. No Senator or Representative shall, during the time for 
which he was elected, be appointed to any civil oSice under the 
authority of the United States, which shall have been created, or 
the emoluments whereof shall have been increased, during such 
time ; and no person holding any office under the United States, 
shall be a member of either House, during his continuance in office. 

Section VII. — 1. All bills for raising revenue shall originate 
in the House of Representatives ; but the Senate may propose or 
concur with amendments, as on other bills. 



24 CONSTITUTION OF THE 

2. Every bill, wMch shall hare passed the House of Repre- 
sentatires and the Senate, shall, before it become a la^v, be pre- 
sented to the President of the United States ; if he approve, he 
shall sign it ; but if not, he shall return it, with his objections, to 
that House in vrhich it shall have originated, who shall enter the 
objections at large on their journal, and proceed to re-consider it. 
If, after such re-consideration, two-thirds of that House shall 
agree to pass the biU, it shall be sent, together with the objections, 
to the other House, by which it shall likewise be re-considered, 
and, if approved by two-thirds of that House, it shall become a 
law. But in aU such cases, the votes of both Houses shall be 
determined by yeas and nays, and the names of the persons voting 
for and against the bill shall be entered on the joui'nal of each 
House, respectively. K any bill shall not be returned by the 
President within ten days (Sundays excepted,) after it shall have 
been presented to him, the same shall be a law in like manner as 
if he had signed it, unless the Congress, by their adjournment, 
prevent its return, in which case it shall not be a law. 

3. Every order, resolution or vote, to which the concurrence 
of the Senate and House of Representatives may be necessary 
(except on a question of adjournment,) shall be presented to the 
President of the United States, and, before the same shall take 
effect, shall be approved by him, or, being disapproved by him, 
shall be re-passed by two-thirds of the Senate and House of Re- 
presentatives, according to the rules and limitations prescribed in 
the case of a bill. 

Section YIII. The Congress shall have power : 

1. To lay and collect taxes, duties, imposts and excises, to 
pay the debts, and provide for the common defence and general 
welfare of the United States ; but all duties, imposts and excises, 
shall be uniform throughout the United States ; 

2. To borrow money on the credit of the United States ; 

3. To regulate commerce with foreign nations, and among the 
several States, and with the Indian tribes ; 

4. To establish an uniform rule of naturalization, and uniform 
laws on the subject of bankruptcies throughout the United States ; 

5. To coin money, regulate the value thereof, and of foreign 
coin, and fix the standard of weights and measures ; 

6. To provide for the punishment of counterfeiting the securities 
and current coin of the United States ; 

7. To establish post offices and post roads ; 

8. To promote the progress of science and useful arts, by 
securing, for limited times, to authors and inventors, the exclusive 
right to their respective writings and discoveries ; 

9. To constitute tribunals inferior to the Supreme Court ; 



UNITED STATES. 25 

10. To define and punish piracies and felonies committed on 
the high seas, and offences against the law of nations ; 

11. To declare war, grant letters of marqne and reprisal, and 
make rules concerning captures on land and water ; 

12. To raise and support armies ; but no appropriation of money 
to that use shall be for a longer term than two years ; 

13. To provide and maintain a navy ; 

14. To make rules for the government and regulation of the land 
and naval forces ; 

15. To provide for calling forth the militia to execute the laws 
of the Union, suppress insurrections, and repel invasions ; 

16. To provide for organizing, arming and disciplining the mi- 
litia, and for governing such part of them as may be employed in 
the service of the United States, reserving to the States, respective- 
ly, the appointment of the officers, and the authority of training the 
militia according to the discipline prescribed by Congress : 

17. To exercise exclusive legislation, in all cases whatsoever, 
over such district (not exceeding ten miles square,) as may, by ces- 
sion of particular States, and the acceptance of Congress, become 
the seat of the government of the United States ; and to exercise 
like authority over all places, purchased by the consent of the legis- 
lature of the State in which the same shall be, for the erection of 
forts, magazines, arsenals, dock-yards, and other needful buildings ; 
and 

18. To make all laws which shall be necessary and proper, for 
carrying into execution the foregoing powers, and all other powers 
vested by this Constitution in the government of the United States, 
or in any department or oQicer thereof. 

Section IX. — 1. The migration or importation of such persons 
as any of the States now existing shall think proper to admit, shall 
not be prohibited by the Congress prior to the year one thousand 
eight hundred and eight ; but a tax or duty may be imposed on 
such importation, not exceeding ten dollars for each person. 

2. The privilege of the writ of habeas corpus shall not be sus- 
pended, unless when in cases of rebellion, or invasion, the public 
safety may require it. 

3. No bill of attainder or ex post facto law shall be passed. 

4. No capitation, or other direct tax, shall be laid, unless in 
proportion to the census, or enumeration, herein before directed to 
be taken. 

5. No tax or duty shall be laid on articles exported from any 
State. No preference shall be given, by any regulation of com- 
merce or revenue, to the ports of one State over those of another ; 
nor shall vessels bound to or from one State be obliged to enter, 
clear, or pav duties in another. 

3 



26 CONSTITUTION OP THE 

6. Xo money sliall be drawn from the treasury, but in conse- 
quence of appropriations made by law ; and a regular statement and 
account of the receipts and expenditures of all public money shall 
be published from time to time. 

T. Xo title of nobility shall be granted by the United States ; 
and no person holding any office of profit or trust under them, 
shall, Ts-ithout the consent of the Congress, acce^Dt of any present, 
emolument, office or title, of any kind whatever, from any king, 
prince or foreign State. 

Section X. — 1. Xo State shall enter into any treaty, alliance 
or confederation ; grant letters of marque and reprisal ; coin money; 
emit bills of credit ; make any thing but gold and silver coin a 
tender in payment of debts ; pass any bill of attainder, ex post facto 
law, or law impairing the obligation of contracts ; or grant any title 
of nobility. 

2. Xo State shall, without the consent of the Congress, lay any 
imposts or duties on imports or exports, except what may be abso- 
lutely necessary for executing its inspection laws ; and the nett pro- 
duce of all duties and imposts, laid by any State on imports or 
exports, shall be for the use of the treasury of the United States ; 
and all such laws shall be subject to the revision and control of the 
Congress. 

3. Xo State shall, without the consent of the Congress, lay any 
duty on tonnage, keep troops or ships of war in time of peace, 
enter into any agreement or compact with another State, or 
with a foreign power, or engage in war, unless actually invaded, 
or in such imminent danger as will not admit of delay. 



ARTICLE II. 

Sectign I. — 1. The executive power shall be vested in a Presi- 
dent of the United States of America. He shall hold his office 
during the term of four years, and, together with the Yice Presi- 
dent, chosen for the same term, be elected as follows : 

2. Each State shall appoiut, in such manner as the legislature 
thereof may du'ect, a number of electors, equal to the whole number 
of Senators and Representatives to which the State may be entitled 
in the Congress ; but no Senator or Representative, or person 
holding an office of trust or profit under the United States, shall 
be appointed an elector. 

3. The electors shall meet in their respective States, and vote 
by ballot for two persons, of whom one at least shall not be an in- 
habitant of the same State "\^ith themselves. And they shall make 
a list of all the persons voted for, and of the number of votes for 



tTNITED STATES. 27 

'each 5 wMch list tliey shall sign and certify, and transmit, sealed, 
to the seat of the goyernment of the United States, directed to 
the President of the Senate. The President of the Senate shall, in 
the presence of the Senate and House of Representatives, open all 
the certificates, and the votes shall then be counted. The person 
having the greatest number of votes shall be the President, if such 
number be a majority of the whole number of electors appointed,- 
and if there be more than one who have such majority, and have an 
equal number of votes, then the House of Representatives shall 
immediately choose, by ballot, one of them for President; and if 
no person have a majority, then, from the five highest on the list, 
the said House shall, in like manner, choose the President. But 
in choosing the President, the votes shall be taken by States, the 
representation from each State having one vote : A quorum for this 
purpose shall consist of a member or members from two-thirds of 
the States, and a majority of all the Sfates shall be necessary to a 
choice. In every case, after the choice of the President, the person 
having the greatest number of votes of the electors shall be the 
Vice President. But if there should remain two or more, who 
have equal votes, the Senate shall choose from them, by ballot, the 
Vice President. [ This clause altered and supplied by the Xllth 
Amendment. ] 

4. The Congress may determine the time of choosing the elec- 
tors, and the day en which they shall give their votes, which day 
shall be the same throughout the United States. 

5. No person, except a natural born citizen, or a citizen of the 
United States at the time of the adoption of this Constitution, shall 
be eligible to the office of President ; neither shall any person be 
eligible to that office, who shall not have attained to the age of 
thirty-five years, and been fourteen years a resident within the 
United States. \_So also as to the Vice Presidxrd. See Xllth 
Amendment.^ 

6. In case of the removal of the President from office, or of his 
death, resignation or inability to discharge the powers and duties 
of the said office, the same shall devolve on the Vice President ^ 
and the Congress may, by law, provide for the case of removal, 
death, resignation or inability, both of the President and Vice 
President, declaring what officer shall then act as President, and 
such officer shall act accordingly, until the disability be removed, 
■or a President shall be elected. 

7. The President shall at stated times, receive for his services a 
•coiftpensation, which shall neither be increased nor diminished 
■during the period for which he shall have been elected ; and he 
shall not receive, within that period, any other emolument from 
the United States, or any of them. 

8. Before he enter on the execution of his office, he shall take 
the following oath or affirmation : 



2'B^ CONSSTTTITION OF THE" 

" I do solemnly swsar (or affirm) that I will faitlifiTlly execnte- 
the office of President of the United States, and will, to the best 
of my ability, preserve, protect and defend the Constitution of the 
United States," 

Section II, — I. The President shall be commander-in-chief of 
the army and navy of the United States, and of the militia of the 
several States, when called into the actual service of the United 
States } he may require the opinion, in -writing, of the principal 
officer in each of the executive departments, upon any subject re- 
lating to the duties of their respective offices ; and he shall have 
power to grant reprieves and pardons for offences against the United 
States, except in cases of impeachment. 

2. He shall have power,, by and with the advice and consent of 
the Senate, to make treaties, provided two-thirds of the Senators 
present concur : and be shall nominate, and, by and with the ad- 
vice and consent of the Senate, shall appoint ambassadors, other 
public ministers and consuls, judges of the Supreme Court, and all 
other officers of the United States, whose appointments are not 
herein otherwise provided for, and which shall be established by 
law. But the Congress may, by law, vest the appointment of such 
inferior officers as they think proper, in the President alone, in the 
courts of law, or in the heads of departments. 

3. The President shall have power to fill up all vacancies that 
may happen during the recess of the Senate, by granting commis- 
sions,, which shall expire at the end of their next session. 

Section III. He shall, from time to time, give to the Congress- 
information of the state of the Union, and recommend to their con- 
sideration such measures as he shall judge necessary and expedient ;. 
he may, on extraordinary occasions, convene both Houses, or either 
of them, and, in case of disagreement between them, with respect 
to the time of adjournment, he may adjourn them to such time as 
he shall think proper: he shall receive ambassadors, and othe? 
public ministers ; he shall take care that the laws be faithfully ex- 
ecuted, and shall commission all the officers of the United States. 

Section IV. The President, Yice President, and all civil officers 
of the United States shall be removed from office on impeachment 
for, and conviction of, treason, bribery, or other high crimes and 
misdemeanors, 

ARTICLE IIL 

Section I. The judicial power of the United States shall be 
■rested in one Suprem.e Court, and in such inferior courts as the 



TJNITED STATES. 29 

Congress may, from time to time, ordain and establish. The judges, 
both of the supreme and inferior courts, shall hold their offices 
-during good behaviour, and shall, at stated times, receive for their 
services a compensation, which shall not be diminished during 
their continuance in office. 

Section II. — 1. The judicial power shall extend to all cases 
in law and equity, arising under this Constitution, the laws of the 
United States, and treaties made, or which shall be made, under 
their authority ; to all cases affecting ambassadors, other public 
ministers and consuls ; to all cases of admiralty and maritime 
jurisdiction ; to controversies to which the United States shall be 
a party ; to controversies between two or more States, between a 
State and citizens of another State, between citizens of different 
States, between citizens of the same State claiming lands under 
_grants of different States, and between a State or the citizens 
thereof, and foreign States, citizens or subjects. 

2. In all eases affecting ambassadors, other public ministers 
and consuls, and those in which a State shall be a party, the 
Supreme Court shall have original jurisdiction. In all the other 
cases before mentioned, the Supreme Court sha,ll have appellate 
jurisdiction, both as to law and fact, with such exceptions, and 
under such regulations as the Congress shall make. 

3. The trial of all crimes, except in eases of impeachment, 
shall be by jury ; and such trial shall be held in the State where 
the said crimes shall have been committed ; but when not com- 
mitted within any State, the trial shall be at such place or places 
as the Congress may by law have directed. 

Section III. — 1. Treason against the United States shall 
consist only in levying war against them, or in adhering to their 
enemies, giving them aid and comfort. No person shall be con- 
victed of treason, unless on the testimony of two witnesses to the 
same overt act, or on confession in open court. 

2. The Congress shall have power to declare the punishment of 
treason, but no attainder of treason shall work corruption of bloody 
jot forfeiture, except during the life of the person attainted. 

ARTICLE IV. 

Section I. Full faith and credit shall be given in each State 
to the public acts, records and judicial proceedings of every other 
State. And the Congress may, by general laws, prescribe the 
manner in which such acts, records and proceedings shall be 
proved, and the effect thereof 

Section II. — 1. The citizens of each State shall be entitled 
to ail privileges and immunities of citizens in the several States. 

3* 



so CONSTITUTION OF THE 

2. A person charged in any State with treason, felony, or 
other crime, who shall flee from justice, and be found in another 
State, shall on demand of the executive authority of the State 
from which he fled, be delivered up, to be removed to th-e State 
having jurisdiction of th« crime. 

3. JSTo person held to service or labor in one State, under the 
laws thereof, escaping into another, shall, in consequence of any 
law or regulation therein, be discharged from such service or labor, 
but shall be delivered up, on claim of the party to whom such 
service or labor may be due. 

Section III. — 1. Kew States may be admitted by the Con- 
gress into this Union ; but no new State shall be formed or erected 
within the jurisdiction of any other State, nor any State be formed 
by the junction of two or more States, or parts of States, without 
the consent of the legislatures of the States concerned, as well as- 
of the Congress. 

2. The Congress shall have power to dispose of, and make all 
needful rules and regulations respecting the territory, or other pro- 
perty, belonging to the United States ; and nothing in this Consti- 
tution shall be so construed, as to prejudice any claims of the 
United States or of any particular State. 

Section IY. The United States shall guarantee to every State- 
in this Union a republican form of government, and shall protect 
each of them against invasion ; and, on application of the legisla- 
ture, or of the executive, (when the legislature cannot be con- 
vened,) agauist domestic violence. 

ARTICLE Y. 

The Congress, whenever two-thirds of both Houses shall deem it 
necessary, shall propose amendments to this Constitution, or, on 
the application of the legislatures of two-thirds of th« several 
States, shall call a Convention for proposing amendments, which,, 
in either case, shall be valid, to all intents and purposes, as part 
of this Constitution, when ratified by the legislatures of three- 
fourths of the several States, or by Conventions in three-fourths 
thereof, as the one or the other mode of ratification may be pro- 
posed by the Congress : Provided, That no amendment, which 
may be made prior to the year one thousand eight hundred 
and eight, shall in any manner affect the first and fourth clauses 
in the ninth section of the first article ; and that no State, with- 
out its consent, shall be deprived of its equal suffrage in the 
Senate. 

ARTICLE YI. 

1. All debts contracted, and engagements entered into, before 



UNITED STATES. 



31 



tha adoption of this Constitutiou, shall be as valid against the 
United States under this Constitution, as under the Confederation. 

2. This Constitution, and the laws of the United States whicli 
shall be made in pursuance thereof, and all treaties made, or which 
shall be made, under the authority of the United States, shall be 
the supreme law of the land ; and the judges in every State shall 
be bound thereby, anything in the Constitution or laws of any 
State to the contrary notwithstanding. 

3. The Senators and Representatives before mentioned, and 
the members of the several State legislatures, and all executive 
and judicial officers, both of the United States and of the several 
States, shall be bound, by oath or affirmation, to support this 
Constitution ; but no religious test shall ever be required as a 
qualification to any office, or public trust, under the United States. 

ARTICLE YII. 

The ratification of the Conventions of nine States shall be suf- 
ficient for the establishment of this Constitution, between the 
States so ratifying the same. 

Done in Convention, by the unanimous consent of the States 
present, the seventeenth day of September, in the year of our 
Lord one thousand seven hundred and eighty-seven, and of 
the Independence of the United States of America, the twelfth, 
In witness whereof, we have hereunto subscribed oui" names. 
GEORGE WASHINGTOIS", 
President, and Deputy from Virginia. 
Pennsylvania. Virginia. 

Benjamin Franklin, John Blair, 
Thomas Mifflin, 
Robert Moms, 
George Clymer, 
Thos. Fitzsimons, 
Jared Ingersoll, 
James Wilson, 
Gouverneur Morris 



New Hampshire. 
John Langdon, 
Nicholas Gilman. 



Massachusetts. 
Nathaniel Gorhan, 
Rufus King. 

Connecticut. 
Wm. Sam'l Johnson, 
Roger Sherman. Delaivare 

New York ^®°^«® ^®^^' 

Mew YorL. Gunning Bedford Jr 

Alexander Hamilton. John Dickinson, 

New Jersey. Richard Bassett, 

William Livingston, ^^^^'^ ^^"^o"^- 



David Brearly, 
William Patterson, 
Jonathan Davton. 



Maryland. 
James M'Henry, 
Dan. St. Tho. Jenifer, 
Daniel Carroll. 
Attest — WiLLTAii Jacksox, Secretary. 



James Madison, jun. 
North Carolina. 
William Blount, 
Rich'dDobbsSpaight, 
Hugh Williamson. 

South Carolina 
John Rutledge, 
C. Cotesworth Pinkney, 
Charles Pinkney, 
Pierce Butler. 

Georgia. 
Willam Few, 
Abraham Baldwin. 



32 CONSTITUTION OF THE 



AMENDMENTS. 

The following articles proposed by Congress, in addition to, 
and amendment of the Constitution of the IJnited States, having 
been ratified by the Legislatures of thi-ee -fourths of the States, are 
become a part of the Constitution. 

ARTICLE L 

(First Congress. Eii'st Session. March 4, 1T89.) 

Congress shall make no law respecting an establishment of re- 
ligion, or prohibiting the free exercise thereof ; or abridging the 
freedom of speech, or of the press ; or the right of the people 
peaceably to assemble, and to petition the government for a 
redress of grievances. 

ARTICLE IL 

A well regulated militia beiag necessary to the security of a 
fi'ee State, the right of the people to keep and bear arms shall 
not be infriuged. 

ARTICLE III. 

iS'o soldier shall in time of peace, be quartered in any house, 
T\-ithout the consent of the OTviier, nor in time of war, but in a 
manner to be prescribed by law. 

ARTICLE lY. 

The right of the people to be secure in their persons, houses, 
papers and effects, against unreasonable searches and seizures, 
shall not be violated ; and no warrants shall issue, but upon 
probable cause supported by oath or affirmation, and particular- 
ly describing the place to be searched, and the persons or things 
to be seized. 

ARTICLE Y. 

Xo person shall be held to answer for a capital, or otherwise 
infamous crime, unless on a presentment or indictment of a grand 
jury, except in cases arising in the land or naval forces, or in the 
militia, when in actual service in time of war or public danger : 
uor shall any person be subject, for the same offence, to be twice 



UNITED STATES. 33 

put in jeopardy of life or limb ; nor shall be compelled, in any 
criminal case, to be a witness against himself; nor be deprived 
of life, liberty or property, without due process of law ; nor shall 
private property be taken for public use, without just compensation. 

ARTICLE YI. 

In all criminal prosecutions, the accused shall enjoy the right to 
a speedy and public trial, by an impartial jury of the State and 
district wherein the crime shall have been committed, which district 
shall have been previously ascertained by law ; and to be informed 
of the nature and cause of the accusation ; to be confronted with 
the witnesses against him ; to have compulsory process for obtain- 
ing witnesses in his favor ; and to have the assistance of counsel 
for his defence. 

ARTICLE VII. 

In suits at common law, where the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be preserved ; 
and no fact tried by a jury shall be otherwdse re-examined in any 
court of the United States, than according to the rules of the com- 
mon law. 

ARTICLE YIIL 

Excessive bail shall not be required, nor excessive fines imposed, 
nor cruel and unusual punishments inflicted. 

ARTICLE IX. 

' The enumeration in the Constitution of certain rights shall not 
be construed to deny or disparage others retained by the people. 

ARTICLE X. 

The powers not delegated to the United States by the Constitu- 
tion, nor prohibited by it to the States, are reserved to the States 
respectively, or to the people. 

ARTICLE XL 

(Third Congress. Second Session. December 2d, 1793.) 

The judicial power of the United States shall not be construed 
to extend to any suit in law or equity, commenced or prosecuted 
against one of the United States by citizens of another State, or by 
citizens or subjects of any foreign State. 



34 CONSTIirTION OP THE UNITED STATES, 



AKTICLE XII. 

(Eighth Congress. First Session. October Itth, 1803.) 

The electors shall meet in their respective States, and vote by 
ballot, for President and Yice President ; one of whom at least 
shall not be an inhabitant of the same State vnth themselves : they 
shall name in their ballots the person voted for as President, and 
in distinct ballots, the person voted for as Yice President; and 
they shall make distinct lists of all persons voted for as President, 
and of all persons voted for as Yice President, and of the number 
of votes for each ; vs^hich lists they shall sign and certify, and transmit 
sealed, to the seat of the government of the United States, directed 
to the President of the Senate ; the President of the Senate shall, 
in the presence of the Senate and House of Representatives, open 
all the certificates, and the votes shall then be counted; the person 
having the greatest number of votes for President, shall be the 
President, if such number be a majority of the vs^hole number of 
electors appointed. And if no person have such a majority, then 
from the persons having the highest numbers, not exceeding three 
on the list of those voted for as President, the House of Represen- 
tatives shall choose immediately, by ballot, the President ; but in 
choosing the President, the votes shall be taken by States, the re- 
presentation from each State having one vote ; a quorum for this 
purpose shall consist of a member or members from two-thirds of 
the States, and a majority of all the States shall be necessary to a 
choice ; and if the House of Representatives shall not choose a 
President, whenever the right of choice shall devolve upon them, 
before the fourth day of March nest following, then the Yice Presi- 
dent shall act as President, as in the case of the death or other 
constitutional disability of the President. The person having the 
greatest number of votes as Yice President shall be the Yice Presi- 
dent, if such number be a majority of the whole number of electors 
appointed ; and if no person have a majority, then from the two 
highest numbers on the list, the Senate shall choose the Yice 
President ; a quorum for the purpose shall consist of two-thirds of 
the whole number of Senators, and a majority of the whole number 
shall be necessary to a choice. But no person constitutionally 
ineligible to the office of President, shall be eligible to that of Yice 
President of the United States. 



OUR GOVERNMENT. 

PART THE FIRST. 

Of the Government of the United States of America* 



CHAPTER I. 



«0P THE GOVERNMENT OF THE UNITED STATES OE AMERICA^ 
IN GENERAL. 

1. There are three simple forms of civil government; mon- 
archy, aristocracy, and democracy. This division is proper rather 
for the purposes of order and explanation, in treatises on the sub- 
ject of such government, than as expressive of actual systems. 
The principles of these theories are variously applied and com- 
bined in the construction of national governments, and in their 
administration. 

2. Monarchy is the government of one chief magistrate, under 
■whatever title, as king, emperor, czar or sultan. There are differ- 
ent kinds of monarchy. Monarchy may be despotic, where the 
«hief magistrate has absolute power, and rules by his simple will 
and pleasure ; or it may be limited, the monarch being obliged 
to rule in conformity to a fixed constitution of government and 
established laws, and where he is controlled by some other power 
in the State. It is hereditary, where on the decease of the king, 
•or other such ruler, his heir becomes his successor. It is elective, 
where the monarch is elected by the nobility, or the people or their 
representatives. 

3. Aristocracy is the government of an order of nobility, the 
'chief men, or a select number of persons in the State. Where it 
is in the hands of a very few persons it is called an oligarchy. 

An aristocracy may be hereditary, where each of the persons s® 
governing exercises his power by right of birth, and at his deatk 
it is held by his heir. 



W GorERN;srENr or the" [part r. 

4. Dfemocracy is the government of the people ;. exercised! 
directly by themselres, or mediately throiigli tlieir representatives. 
These three foi-ms of government are often united and mixed ; a 
government being formed on principles belonging to each of them ;• 
or it may be so as to any two of them.- 

5. A republican government is one m which the' people rule- 
through their representatives chosen or appointed by them for the- 
purpose. 

A. community of people with an established civil government is 
called, according to the nature of the government, a kingdom, an 
empire, a State, nation or republic. Those in which the people 
rule by themselves or their representatives are called free govern- 
ments. 

Where several States are united together, by compact, having' 
constituted a general power of government over them or their" 
people, in reference to some common purposes, they are called a- 
©onfederation of States. 

NATURE AND FORM OP THE GOVERNMENT. 

6. The form of government of this country is that of a Hepublic- 
The United States of America, as a nation, are a federal republic ; (a)' 
formed, at first, and constituted by all the people of the TTnited 
States (6) in their original and aggregate capacity ; with a general: 
government of limited powers, for national purposes, and operating 
upon the individual citizens ; the several States having separate 
republican governments for the regulation of their internal affairs 
respectively, in accoi"dance with the Constitution of the Union. 

T. Under the system of government of this country, the supreme- 
powers of government are divided between the government of the 
United States and the governments of the individual States. The' 
former, created by the federal Constitution, is a government, in the- 
proper sense of the term, within the sphere of its powers, as the 
latter, created by the Constitutions of the States, are governments, 
within their several spheres ; the one thus operating in all the States,- 
and the others separately in each State ; and there being a concur- 
rent operation, in certain eases, by the general government and- 
the several States. 

8. There is a general government for the Union, having certain 
powers expressly declared in the written Constitution of the United 
States, or necessarily iniplied(c) by its provisions ; and there are 
the several States, the people of each State having all powers of 

(a) See explanation of these terms further on-, intliis chapter, par. 24-6- 

(b) See p. 4-2, aixl note A ii> Appeiidisv 
((e) See p. 44- 



alL I.] XnsriTED STATES. 5*1 

.-^:',-!7crRment and possessing all rights, not thus declared and im- 
,plied, nor prohibited to them severally by that Constitution, nor 
■jjarted with by it to the other several States. The government of 
■the Union is one of enumerated powers, 

THE INDEPENDENCE OF THE STATES. 

[). The original States, formerly colonies of Great Britain, be- 
't-aiue free and independent, respectively, by their Declaration cf 
Independence, on the fourth day of July, 1776, the birth-day of 
wjur national independence. 

The declaration, not the recognition, of our independence has 
universally been regarded as our national era. 

10. The Declaration of Independence was made by the Congrefcs 
of Delegates of the united colonies. The Congress was composed 
-of delegates appointed by the people of the colonies, in their primary 
and sovereign capacity. 

By this Declaration of Independence all political connection be- 
tween those colonies and Great Britain was totally dissolved and 
they became free and independent States. They then, for the first 
.time, and by that act, assumed the name of the United States of 
America; the national title since that period retained and con- 
tinued. 

This Declaration was sustained by the successful defence of the 
States against Great Britain, in the war of the American revolution, 
on the termination of which their independence was acknowledged 
by treaty with that country, and subsequently recognised by other 
i ations. 

The thirteen original States were Virginia, Massachusetts, New 
Hampshire, Connecticut, Rhode Island, IN'ew York, New Jersey, 
Pennsylvania, Delaware., Maryland, North Carolina, South Caro- 
lina and Georgia. 

11. "The declaration of the independence of all the colonies 
was the united act of all. It was a declaration by the representa- 
tives of the united States of America in Congress assembled ;" — 
"by the delegates appointed by the good people of the colonies.'' 
It was not an act done by the State governments then organized, 
nor by persons chosen by them. It was emphatically the act of 
the whole people of the united colonies, by the iuBtrumentality of 
their representatives, chosen foa' that, among other purposes. It 
was an act of original, inherent sovereignty by the people them- 
selves, resulting from their right to change the form of govern- 
•ment, and to institute a new government, whenever necessary far 
.their safety and happiness. No State had presumed of itself to 
form a new government, or to provide for the exigencies of the 
sl^vimes, without consulting the Congress on the subject ; and when 

4 



S8 GOYEKNJMENT OF THE [JPABT T. 

tliey acted, it was iu pursuance of the recommendation of Con- 
gress. It was therefore the acMeYement of the whole, for the 
benefit of the whole. The declaration af independence has ac- 
cordingly always been treated as an act of param-ount and 
sovereign authority, complete and perfect in itself, and by its own 
act working an entire dissolution of all political connexion with 
and allegiance to Great Britain ; and this, not merely as a prac- 
tical fact, but in a leg-al and constitutional view of the matter by 
courts of justice." (d) 

THE COLONIAL GOYEBNMENTS. 

12. What was the nature of the governments of the colonies, 
prior to the American Revolution ? 

The colonies were dependencies of Great Britain, owing allegi- 
ance thereto ; and they had governments, in respect to their local 
and interior affairs, organized, and exercising power, in accord- 
ance with the grants, commissions, and charters issued by the 
British king. 

13. A colony is a body of people forming a settlement in a 
remote province or territory, under the authority of, and to remain 
subject to the jurisdiction of their parent country. 

The title to the territory occupied by these colonies, and consi- 
dered to be within their boundaries, and the right of govern- 
ment therein, were claimed by Great Britain, on the ground of the 
discoveiy and settlement of that part of North America by the 
citizens of that nation and under its authority. Such right in re- 
ference to newly discovered countries was recognized in practice 
at that time by the nations of Europe. 

The colonists were subjects of Great Britian, entitled to the 
rights and immunities of citizens thereof, and its laws being in 
operation in respect to them, as far as applicable to them in their 
situation and circumstances. 

14. There were three forms of colonial government ; viz.. Pro- 
vincial, Proprietary, and Charter Governments. 

Fi7^st. The Provincial Governments were those established by 
the grants or commissions of the king, in which the whole political 
and civil power was to be exercised under his immediate authority 
and control. Under them there was a Governor of the Province,, 
appointed by the King, as his representative or deputy, and to be 
governed by iastructions ;. and also a councU, appointed in the 
same manner, who^ besides their legislative authority, were to 
assist the governor in the discharge of Ms ofE.cial duties. Pro- 
Tiucial Assemblies were constituted, composed of the Governor^ 



(d) 1 Story on tlie Cons. p.. 19S=. 



Cn. T.] UNITED STATES. 30 

council, and the representatives of the freeholders, which had the 
power of making local laws and ordinances, subject to the ratifica- 
tion or disapproval of the crown. The governor had power, with 
the advice of the council, to establish courts, to appoint judges, 
magistrates, and other officers, for the province ; to pardon of- 
fences, and remit fines and forfeitures ; to raise military forces for 
defence ; and to execute martial law in time of invasion, war and 
rebellion. Appeals lay to the king in council from the decisions 
of the highest court of judicature of the province, as indeed they 
did from all others of the colonies. 

This form of government existed in the provinces of New- 
Hampshire, New- York, New-Jersey, Virginia, the Carolinas, and 
Georgia. 

15. Secondly. Proprietary Governments were those, under 
which the right of territory and jurisdiction was granted, by the 
king to one or more individuals, as proprietaries, subject to the 
sovereignty of the mother country. In these governments, the 
proprietaries were governors, or there were governors appointed 
by the proprietaries, and legislative assemblies were convened 
under their authority. 

There existed three Proprietary Governments at the period of 
the American Revolution ; viz. , those of Maryland, Pennsylvania, 
(e) and Delaware. 

16. Thirdly. Charter Governments were those, established by 
the charters of the king, and under which the colonies possessed 
the general powers of government, including the powers of legisla- 
tion and taxation, within their own territorial limits ; though de- 
pendent upon, and subject to the realm of England. 

The Charter Governments existed in Massachusetts, Rhode- 
Island and Connecticut. 

In Massachusetts, the governor was appointed by the king ; the 
council chosen by the G eneral Assembly ; and the House of Re- 
presentatives by the people. In Connecticut and Rhode-Island 
the governor, council and assembly were chosen by the freemen 
of the colony, and all other officers appointed by their authority. 

17. The following principles and circumstances were, notwith- 
standing the diversities of their organization of government, com- 
mon to all the colonies, 

(1) They enjoyed the rights and privileges of British born 
subjects, and the benefit of the common law of England ; and all 
their laws were required to be not repugnant to, but, as near as 
might be, agreeable to the laws and statutes of England. 

(2) In all the colonies local legislatures were established, one 
branch of which consisted of representatives of the people freely 
chosen. 

(e) See the Pennsylvarua Constitutional Manual \)J the author of this 
work. 



iO , GOVERNMENT OF THE • [PAKT I. 

(3) The colonies were considered, not as parcel of the realm 
of Great Britain, bnt as dependencies of the British crown, and 
owing allegiance thereto, the king being their supreme and 
sovereign lord. 

(4) The colonies had no direct political connection with each 
other. Each was independent of all the others ; and each, in a 
limited sense, was sovereign within its own territory. There was 
neither alliance nor confederacy between them. 

(5) Though the colonies were independent of each other in 
relation to their domestic concerns ; they were not wholly alien to 
each other. They were fellow subjects, and for many purposes one 
people. Eveiy colonist had a right to inhabit, if he pleased^ 
every other colony ; and as a British subject, he was capable of 
inheriting^ lands by descent in every other colony. The commercial 
intercourse of the colonies, too, was regulated by the general laws 
of the British empire ; and could not be restrained, or obstructed 
by colonial legislation. 

THE KEVOLUTIONAIIY GOYERNMENT. 

18. The united colonies had at first a system of general govern- 
ment, preparatory to, and at the commencement of the American 
revolution. It was a national or general government, organized 
by the representatives of the people, the authority of which was 
exercised by the Congress of Delegates, or Continental Congress. 
It was called the "revolutionary government." The first Congress 
assembled in 1YT4; in 11T5 a second continental Congress met, 
and held its sessions during the revolutionary war ; and this go- 
vernment continued until the formation of the confederated govern- 
ment in 1781. 

The colonies often united together for the purpose of their de- 
fence and general welfare. . And agreements were early formed 
among them for common action in resistance against the usurj^ations 
and oppressions of the government of Great Britain. 

The Congress of IT 1 5 published a Bill of Eights; styling them- 
selves "The Delegates appointed by the Good People of these 
Colonies." In these CongTes-ses the votes were taken by colonies; 
the delegates fi'om each colony casting one vote. 

" The Congress thus assembled, (in 1114) exercised de facto 
and de jure a sovereig-n authority; not as the delegated agents of 
the governments of the colonies, but in virtue of original powers 
derived from the people. 

' ' Thus was organized, under the auspices, and with the consent 
of the people, acting directly in their primary and sovereign capa- 
city, and without the intervention of the functionaries to whom the 
ordinary powers of government were delegated in the colonies, th.e 



CH. I.] UNITED STATES. 41 

first general or national government, which has been very aptly- 
called "the revolutionary government, " since in its origin and 
progress it was wholly conducted on revolutionary principles. 

"As soon as the Continental Congress assumed powers and 
passed measures, which were in their nature national, to that extent 
the people, from whose acquiescence and consent they took effect, 
must be considered as agreeing to form a nation. 

" From the moment of the Declaration of Independence, if not 
for most purposes at an antecedent period, the united colonies must 
be considered as a nation de facto, having a general government 
over it, created, and acting by the general consent of the people 
of the colonies. 

' ' It was the result of an examination before the Supreme Court 
of the United States, that the Congress, before the confederation, 
possessed, by the consent of the people of the United States, sove- 
reign and supreme powers for national purposes. "(/) 

THE CONEEDERATION OF THE STATES. 

19. Another system of general government was afterwards 
adopted and used by the United States. 

After the declaration of independence, there was formed a con- 
federation of the States, under the "Articles of Confederation, " 
the authority of which was exercised by the Congress, as expressly 
delegated to it. 

These were adopted by the Congress of Delegates in November, 
nil, and finally ratified, so as to become obligatory upon all the 
States, in March, 1181. 

It was a union of the States, declared to be perpetual, ' ' for the 
common defence and general welfare ; but it was, in effect, only a 
league between the States as independent communities, acting upon 
their governments severally, by the terms of which the authority 
of their Congress of Representatives was binding upon them, but 
without any provision for enforcing its requisitions, or adding any 
sanction to its laws. 

The Congress consisted of delegates chosen every year by each 
State, not less than three nor more than seven in number ; each 
State to pay the expenses of its own delegates ; the votes to be 
taken by States, each State to cast a single vote. 

The expenses of the confederation, in conducting the war, and 
for the general welfare, were paid out of a common fund, to which 
contributions were made by the several States, in a proportion pre- 
scribed by the articles. 

The confederation continued from the time of the ratification of 

(f) See Story on the Constitution, pp. 18G, 200, 207. 



42 GOVERNMENT OF THE [PART I. 

the articles to tlie period wlien the present Constitution went into 
operation. 

The confederation of the States did not answer the purposes 
designed by it. It was found, after the termination of the revolu- 
tionary war, to be too weak for the ends of a national government. 

ORIGIN AND NATURE OF THE PRESENT SYSTEM OF GOVERNMENT. 

20. The present government of the United States was formed by 
the agreement of the people, expressed in conventions of their 
representatives, whereby they adopted a written constitution for the 
government of the people of the United States as a nation. There 
was thus formed a Union of the people, a government for the 
whole. * 

21. As to its nature, in general, the authority of the govern- 
ment proceeds from and acts upon the peoj)le as individual citizens 
thereof. 

22. The fundamental principle of our government is that the 
sovereignty or supreme power is in the people ; that it is the right 
of the people to make laws to govern themselves. The government 
is based on the fact of this right in the people. 

As accordant with this truth, the genius of our free institutions 
admits the principle of the equality of human rights, in civil affairs. 
It was the ruling sentiment of these principles that incited to, and 
effected this structure of our government, making its end to be 
"to establish justice, to secure the blessings of liberty, "f 

23. The principle of the representation of the people is fully 
applied in our system of government. It is one of the leading 
principles in our general government, and in those of the States 
severally, by which the people exercise their supreme power through 
their representatives or delegates. It is carried out in the plan of 

* " To tte efficacy and permanency of your Union a government for the 
whole is indispensable. No alliance, however strict "bet-ween the parts, can 
he an adequate substitute ; they must inevitably experience the infractions 
and interruptions which all alliances, in all time, have experienced. Sen- 
sible of this momentous truth, you have improved upon your iirst essay, by 
the adoption of a Constitution of government better calculated than your 
former for an intimate Union, and for the efficacious management of your 
common concerns. This government, the offs]pring of your own choice, un- 
influenced and unawed, adopted upon full investigation, and mature deli- 
beration, completely free in its principles, in the distribution of its powers, 
uniting security with energy, and containing within itself a provision for 
its own amendment, has a just claim to your confidence and support." — 
Washington'' s Farewell Address to the People of the United States. See 
further on, chap. II. 

t " This government — completely free in its principles." — Washington's 
Farewell Address. — 



en. I.] UNITED STATES. 43 

the several cle}3artments of the general government ; in different 
modes, according to the nature of each, thus securing by the com- 
bination the best practical results. All the officers of the govern- 
ment are the representatives or agents of the people, possessed only 
of delegated powers which are to be exercised for the benefit of 
the people. 

24. The government of the United States is called a federal 
Republic ; because that in our political system there is a number 
of several republican States, having separate and independent go- 
vernments for local purposes ; which have particular relations to 
the general government, and to each other, according to the con- 
stitution of the Union, and which are thus united into one nation, 
by the act and agreement of the people. The term " federal " is 
derived from the Latin word fcedus, signifying a league, a confe- 
deracy, an alliance. 

25. The Constitution of the United States is called the federal 
Constitution . 

26. The federal government, as so called, is the government 
of the people of the United States, as a nation, and as distinct 
from the government of any particular State. 

THE AUTHORITY AND POWERS OF THE GENERAL GOVERNMENT, IN 

GENERAL. 

21. The subject of the government of the United States may 
be perspicuously considered ; 

I. With regard to the particular structure and organization of 
the government. 

II. In relation to the powers vested in it ; and to the restraints 
imposed upon, and the rights secured to, the several States. 

The subject may be properly presented, as it is here proposed, 
in a view of the authority of the general government ; of the dif- 
ferent departments thereof, their organization and powers respec- 
tively ; and of the relations of the several States and the people 
thereto. 

28. The general government is the government of the United 
States, in all its departments, legislative, executive and judicial. 
It is also called the national government. 

29. The Union is not completely sovereign, not having supreme 
power for all purposes ; but it is sovereign in the exercise of the 
powers granted to it by the federal Constitution. 

30. What is the extent, in general, of the powers of the gene- 
ral government? 

The general government is possessed of only limited powers-, as 
granted by the people of the United States in the federal Consti- 
tution, for national purposes only ; all other matters being under 



44 GOVERNMENT OF THE [PART 1. 

the control of the State governments, or of the people of the 
States severally, except where it is prohibited by the federal Con- 
stitution. 

31. Is any of the particular States sovereign? 

'No single State is completely sovereign, or independent of the 
Union ; but eveiy State is sovereign in the exercise of its powers, 
consistently with the provisions of the federal Constitution. 

32. In the federal Constitution the objects are stated for which 
it was established. They are therein declared to be : 

" In order to form a more perfect Union; to establish justice ; 
to insure domestic tranquillity; to provide for the common defence ; 
to promote the general welfare ; and to secure the blessings of 
liberty to ourselves and posterity. " Cons, of U. S., Preamble. 

33. By "the powers of the general government" are meant 
the powers vested, by the federal Constitution, in the general 
government, or any department of it, or thus exercised in pursu- 
ance thereof. 

The powers of the general government, being distributed 
amongst its different departments, embrace the powers which may 
be constitutionally exercised either by any one department, or by 
all the departments together. A power possessed by any one de- 
partment must be included in the general powers of the govern- 
ment ; it cannot exercise a power not comprehended therein. 

The rules of construction which are applicable to the powers of 
the general government, are proper, also, in regard to the powers 
of any particular department of it. 

34. How may the powers conferred by the federal Constitution 
on the general government be classed ? 

The powers g-ranted hy the federal Constitution are called; the 
enumerated powers, being the substantive and primary powers 
expressly specified ; and the incidental poioers, being secondary 
and subordmate powers necessary as means for executing or carry- 
ing into effect those enumerated powers : And these two classes 
include all the powers conferred upon the general government, as 
there is an implied prohibition of all other powers. In the federal 
Constitution the grant of powers is special, the prohibition of them 
general. There is also a class of powers in the federal Constitu- 
tion coWadi powers prohibited to the general government ; another 
class Cdll^A ^ooicers p)rohibited to the States severally; and another 
class called concurrent powers, or those which, from their nature 
or the language of the Constitution, may be exercised concurrently 
by the general government and the State governments, {g) 

(g) See, fuither on, the titles " Congress of the United States," chap, iii ; 
"Powers prohibited to Congress and'the federal government," chap, iv; 
and " Powers prohibited to the States sererallj," chap. v. 



I 



C'll. I.J UNITED STATES-. 45 

S5. Tlte powers of the general government are either exclusive 
or concurrent ; (h) exercised by it only, or by it concurrently with 
the several States. 

36. There are provisions in the federal Constitution which may 
be called and classed as those which expressly secure certain rights 
and privileges to the several States, and the citizens thereof. (^) 

3*7. There are powers called reserved powers, being reserved 
to the States severally, or the people, by the federal Constitution, (i) 
The general government yiossesses only those powers which are 
conferred upon it as enumerated l)y the federal Constitution. All 
others are expressly declared to be withheld from it. None can 
exist by prerogative or inherent power, in any branch of it. 

"The powers not delegated to the TJnited States by the Consti- 
tution, nor prohibited by it to the States, are reserved to the States 
respectively, or to the people. ' ' Cons, of U. 8. , Amendments, 
Art. X. 

38. There are what may be called the declared general prin- 
ciples and rights, in the federal Constitution. 

They are certain general principles and provisions, contained 
in the federal Constitution, which are restrictive of the powers of 
government, and declaratory of the rights of the several States 
and the people, (j) 

39. There are certain express general provisions, in the federal 
Constitution, as to the delegation of powers to the general gov- 
ernment. 

' ' The powers not delegated to the United States by the Consti- 
tution, nor prohibited by it to the States, are reserved to the States 
respectively, or to the people. " Cons, of U. 8., Amendments, 
Art. X. 

' ' The enumeration, in the Constitution, of certain rights shall 
T ot be construed to deny or disparage others retained by the peo- 
ple. " Co7is. of TJ. 8., Amendments, Art. IX. 

"And nothing in this Constitution shall be so construed as to 
prejudice any claims of the United States, or of any particular 
State." Art. IV., 8ection III, 2. 

40. The incidential powers are included in the express or 
enumerated powers, and equally delegated with them, by the federal 
Constitution, to the general government. 

41. The laws of the United States are supreme. 

"The Constitution, and the laws of the United States, which 
shall be made in pursuance thereof, and all treaties made, or 
which shall be made, under the authority of the United States, 

(h) See chap iii., pp. 87-8. 
(i) See Part the First, chap. \'i. 

(j) See Part tlie First, chap vi. ; and as to the Declaratious or Bills of 
Rights ill the several States, see Part the Secoad, chap. ii. 



46 GOVERNMENT OF THE [PART I. 

shall be the supreme law of the land." Cons, of the U. S., Art 
VI, sect. II. 

42. What is the authority of the federal Constitution, and the 
Acts of Congress ; and the constitution of the several States, and 
the laws thereof, respectively ; in relation to each other ? 

They are authoritative and binding, in the following order : 
first, and paramount over all, the federal Constitution ; secondly, 
treaties and Acts of Congress ; thirdly. State constitutions ; and 
fourthly, Acts of the State Legislatures or laws of the States 
severally ; and in case of conflict, they must yield respectively to 
each other accordingly. 

43. All federal and State officers are required to be sworn or 
affirmed to support the Constitution of the tinited States. 

' ' The Senators and Representatives of the tFnited States, the 
members of the State Legislatures, and all executive and judicial 
officers, both of the United States and of the several States, shall 
be bound by oath or affirmation to support this Constitution." 
Cons, of U. S. Art. VI. 3. 

44. What is, then, the nature of the general government, in its 
relations to the several States, and the people of the ITnion ? 

It extends over the Union, in constitutional power, as one na- 
tional community or body politic ; composed, not only of the peo- 
ple of the States, but to a certain degree of the States themselves, 
for the purposes of investing the States, as well as the people, 
with one national character, (k) 

Union to be perpetual. 

45. The Union between the people of the several States, thus 
formed by the federal Constitution, is intended to be perpetual. 

As the government of the Union is the government of the peo- 
ple, it cannot be abolished or abrogated, except by their 
consent. 

46. No State then, nor the people thereof, has a right to 
recede from the Union, or to dissolve the relations subsisting be- 
tween it and them. (Z) 

Allegiunce and protection. 

47. The people, thus, owe allegiance and obedience to both 
the general government and the States respectively in which they 
reside. The people are at the same time citizens of the State in 
which they reside, and of the United States, according to the 
federal Constitution and the laws of the Union, and to the State 
constitution and laws. 

(h) Duer's Constitutional Jurisprudence, p. 219. See Part the Seeond, 
of this work, chap. i. 
(0 See Part II, chap. i. 



CH. I.] UNITED STATES. 47 

With this allegiance is connected the right of protection and 
])rivilege. The people of a State are entitled to the protection of 
the constitution and laws of the Union ; and, in general, its citi- 
zens to the rights and privileges secured to the citizens of the 
United States. The nature of this allegiance, and its relations, 
will be further illustrated in the progress of this work. 

48. The term " The United States" means, in regard to terri- 
tory and jurisdiction, the whole of the nation. It is the name 
given to our great republic, which is composed of States and tem 
tories. 

THE SEVERAL DEPARTMENTS OP THE GENERAL GOVERNMENT. 

49. The powers of the general government, which are dele- 
gated to it by the federal Constitution, are distributed among 
several distinct departments of the government. 

The different departments of the general government, are the 
legislative, executive, and judicial ; the federal Constitution 
specially defining the general powers and duties of each department. 

The just distribution of the delegated powers of government 
among distinct branches or departments of it, properly organized, 
is essential to the best system of republican government. Where 
the powers of government are all vested in the same hands, it is 
an absolute government, or despotism, in which there is no security 
against the abuse of power. 

50. The several departments of the general government are 
organized in the modes prescribed by the federal Constitution. 

51. The legislative power, of the general government, is 
vested in a Congress of the United States, composed of a Senate 
and a House of Representatives ; both chosen periodically, the 
former by the States severally, the latter by the people, (hi) 

52. The executive power, of the general government, is vested 
in a President of the United States, elected, with a Vice-President, 
for a term of years, in a mode- and upon a principle which in effect 
combine the suffrages of the people with those of the several 
States, (n) 

53. The judicial power is vested in a Supreme Court, and in 
such inferior courts as Congress may from time to time establish ; 
the judges holding their offices for life, unless sooner removed on 
conviction of misbehavior, (o) 

54. These departments are co-ordinate branches, of the general 
government, with separate powers, acting independently of each 
other in the exercise of their peculiar powers respectively. 

(m) See Part the First, chap. iii. (n) See Part the First, chap, viii, 
(o) See Part the First, cliap. ix. 



48 GOVERNTMENT OF THE [PABT t 

55. These departments are so organized, and connected \ritli 
each other, by their mutual relations, and the apportionment of the 
powers of government among them, as that each one may be a 
constitutional check upon the others, and the means of keeping 
them within their proper spheres. 

56. The judicial department has, in the due administration of 
justice, according to its jurisdiction, the power of interpreting the 
federal Constitution, and of deciding upon the validitj of the 
acts of the other branches of the general government, in reference 
to the Constitution, (o) 

The peojjJe and the States are represented in the Genercl 
Government. 

5T. Each of these departments, of the general government, in 
the exercise of its proper powers, is the representative of the peo- 
ple, as the source of its authority, and as having the supreme 
power. 

58. The several States are represented in the general govern- 
ment. 

The principle of representation is applied, in the Constitution, 
not only to the individual citizens of the United States, but to the 
individual States of the Union ; and it pervades the three great 
departments, among which the powers of government are distri- 
buted and appointed, {p) 

In the system of the government of the United there is a com- 
bination of the national and federative principles. Every district 
or territorial division of the community or nation has its 'propor- 
tional share in the government ; and the States, independent and 
sovereign in their proper spheres, however unec[ual in respect to 
territory and population, have each an equal voice in the public 
councils. Representation in the general government is founded 
on these principles united. The Congress is constituted on these 
principles, the House of Eepresentatives being formed on pro- 
p)ortional representation, and the Senate on that which is equal. 
In the mode of the election of the President of the United States 
these principles are also combined. 

TERRITORIAX GOYEEXMEXTS. 

59. Territori-al governments, in the United States, are the go- 
vernments of the territories belonging to the Union, and not lying 
within the limits of any of the several States. They are created 
by Act of Congress, and are entirely dependent upon the govern- 
ment of the Union. The nature of these governments is more 
fully considered, and the subject of the acquisition of territory by 

Co) See Part tlie First, cliai"). ix. fp) Duer's Cons. Jur. p. 34, 



CH. I.] UNITED STATES. 49 

the general government referred to, under the proper heads in 
treating of the powers of Congress, (q) 

There have been, from time to time, temtory and lands, ac- 
quired by the United States, by cession from the several States, 
by treaty from other nations, and by purchase from the aboriginal 
Indians ; being the domain and property of the United States, as 
a nation. While remaining such and without the limits of any of 
the several States, they with the inhabitants thereof have been, 
and are subject to the direct and exclusive power and jurisdiction 
»)f the general government. For some parts of this territory, in 
this state, there have been organized, at different times, by Acts of 
Congress, Temtorial Governments ; there being for each territory 
a Governor, appointed by the President, a Legislature, elected by 
the people thereof, and other officers, appointed by the Governor 
or President ; the bills passed by the Legislature not becoming 
laws until approved by the President or Governor ; and the ad- 
ministration of justice being through the courts of the United 
States. The other parts of such territory, in the same state, and 
the people thereof, have been governed altogether and directly by 
the laws of the United States. Those territories have been, and 
will continue to be governed by these methods, respectively, until 
they are, and shall be admitted, with constitutional governments, 
into the Union, as States, under the provisions of the Constitution 
of the United States. 

DISTRICT OF COLUMBIA. SEAT OF GOVERNMENT. 

60. The territory comprised in the District of Columbia, being 
within the States of Virginia and Maryland, was ceded by those 
States respectively to the United States ; the power and jurisdic- 
tion of civil government over it, and the people thereof, being so 
transferred ; and the cession was accepted by Act of Congress. 
Under the federal Constitution, Congress has power "to exercise 
exclusive jurisdiction, in all cases whatsoever, over such district ;"§ 
and, by Act of Congress, it was formed into the District of 
Columbia, and the seat of the general government fixed at the 
City of Washington therein. By an Act of Congress in 1846, the 
City and County of Alexandria, part of said District, was retro- 
ceded to the State of Virginia. 

The District is governed by the authority of the laws of the 
United States, as well in regard to its domestic policy as to its re- 
lations to the Union ; the Acts of Congress having either adopted 
the laws of Virginia and Maryland respectively as the laws of 
the District, or having enacted new provisions for the purpose. 

(q) See the title. Congress of the United States, chap. iii. 
(§) Cons, of U. S., Art. I., Sec. viii, 17. 
5 



50 GOTEEXMEXT OF THE [PART I. 

By Acts of Congress the laws of those States applicable to the 
respective parts of the territory, at the time of its cession, were 
continued in force ; new provisions being made, adapted to the 
change of jurisdiction and mode of administration. 

The DisMct has no Legislature, of its own ; and it is not re- 
presented by members, elected or appointed by the people thereof, 
in either House of Congress. 

There is a Court established by the laws of the United 
States for the District, which is vested with general jurisdiction, 
and the judges of which are appointed by the President of the 
United States, with the advice and consent of the Senate ; as 
there are also so appointed therefor an Attorney of the United 
States, a Marshal, Register of Wills, Judge of the Orphans' 
Court, and Justices of the Peace. 

The District, then, is thus included within the whole territory 
of the United States ; the laws of which, of a general nature, ex- 
tend to it ; and its citizens are citizens of the Union. 

The nature of the government of the District, and its relations 
to the Union, are treated of more fully in that part of this work 
which refers to the powers of Congress relative to it. J 

CITIZENS OF THE UNITED STATES. 

61, Citizens, under our constitutions and laws, mean the free 
inhabitants born within the United States, or naturalized under the 
laws of Congress, (r) 

G2. The inhabitants of this country may be divided in respect to 
citizenship, as generally classed, into citizens or aliens ; and citizens 
are native or naturalized. Natives are all persons born within the 
jurisdiction of the United States. 

In general, every free person born within the United States is a 
citizen, owing allegiance to the government thereof. And the 
children of citizens, although they are born abroad, are considered, 
in law, as citizens of the United States, if their parents have at 
some time resided here. 

Under the Act of Congress, of 1802, "to establish an uniform 
rule of naturalization, &c. , ' ' the infant children of aliens, though 
born out of the jurisdiction of the United States, if dwelling within 
the United States at the time of the naturalization of their parents, 
become citizens by such naturalization. And the provision of that 
Act on the subject is prospective, so as to embrace the children of 

(t) See Part I, chap, iii, head Seat of Government. 
(r) Kent's Comm. on American Law, p. 258, in notes, as to tne natu- 
arlization of aliens, see chap. Ill, head Naturalization, &c. 



«H, I. ] UNITED STAT"ES. 51 

. aliens naturalized after the passage of the Act, as well as the chil- 
dren of those who were before naturalized. 8 Paiges'' Chan. Rep, 
433. 

63. There is, properly speaking, no oath of allegiance to the 
general government ; or, it may be said, no other tlian the oath to 
support the federal Constitution, which every officer and na- 
turalized citizen takes. 

64. Can a citizen of this government expatriate himself, and 
absolve himself from any obligations as such, and become a citizen 
of another nation ? The perpetual allegiance of a citizen to his 
government is the doctrine of the common law. It appears, from 
the spirit of our federal constitution and laws, not to be so regarded 
in this country. ^ 

A citizen of one State in another. 

<)5. The rights of a citizen of any State, in another State, 
are guaranteed to him by the federal Constitution. 

" The citizens of each State shall be entitled to all privileges 
and immunities of citizens in the several States." Cons, of the 
U.S. Art. IV. sect. 11,(0 

Free negroes and mulattoes. 

66 How are free colored persons, born within the United States, 
to be considered ? 

' ' As citizens, but under such disabilities as the laws of the States 
respectively may deem it expedient to prescribe to free persons of 
color, {u) 

SLAVES. 

67. Are there persons held as slaves, in this country, under the 
laws thereof? 

In some of the States, there are, under the laws thereof, colored 
persons or negroes, imported before the year 1808, or their de- 
scendants born therein, who are held by individuals as slaves ; the 
federal Constitution recognizing the condition of such slaves, in 
the States, and containing certain provisions in relation to them, (u) 
There are, also, slaves held as property by individuals in the Dis- 

<0 See Part I, chap. VI. 

(u) 2 Kent's Comm. on American Law, p. 258. And see Part II, head 
"" Relations of persons." 

(v) See Part the First, chap, v, heads "Fugitives from Labor," and! 
"chap. iv, head " Importation of Slaves," and chap, iii., 43, AL 



5^f GOTEEmiENr OF THE' [PAKTI. 

trict of Columbia, and in some of the Territories of the United! 
States. 

AUENS. 

6'8'. Aliens are persons born out of the jurisdiction of the- 
tJnited States, and owing allegiance to a foreign government ; the 
eitizens and subjects of another nation. 

69, Aliens are divided into alien friends and alien enemies.^ 
Alien enemies are aliens whose country is at war with ours. 

Alien enemies, residing here, are, by the general law, considered' 
as enemies, and their persons and property liable to be seized and 
confiscated. Any evils or injustice, however, that might follow 
from this principle, on a declaration of war, are prevented by the- 
interference of the government, or the laws of Congress. 

70. Aliens, while residing in this country, are subject to the' 
general laws of the United States, and of the States severally, and 
entitled to the protection thereof 

This is the case as to- aliens living here, whx3se country is at 
peace with ours. They do not owe allegiance to the government, 
and are not bound to render military service, or to perform- other' 
acts having a direct reference ta the government and a bearing 
upon other countries. They are subject to those laws, and; entitled 
to their protection, which relate to the preservation of the peace 
and good order of society, which govern the rights of person, pro- 
perty and contract, and concern th« administration of justice. 

An alien has his election to sue in the Circuit Courts of the 
United States, or in a State court ; and may be sued by a citizen 
in either court ; and when he is a defendant in a suit commenced 
in a State court, it may be removed at Ms instance to the Circuit 
Court of the United States. See Part I , chap. IX , on the Judi- 
ciary of the United States. 

Yl. As to the disabilities of aliens in this country* they cannot 
hold offices, vote at elections, act as jurors, or, generally, perform 
any service connected with the administration of the civil affairs of 
the country. 

T2. Can aliens hold property in this country? 

In regard to personal property, their legal capacities are, in 
general, the same as those of citizens. In some of the States they 
cannot hold real estate ; or the right to do so is limited by the 
laws thereof respectively. 

Resident aliens may become citizens, on certain conditions, and 
in the manner prescribed by the Acts of Congress, (lo) They a,r& 
then called naticralized citizens. 

$w), See Part I , cluap. iii.. 



■CR. T.] 



^crNrrED states. 



5S 



13. jS'aturalized citizens have, in general, the same political 
and civil rights which native citizens enjoy. Naturalized citizens 
are not eligible to some offices, and a prescribed term of citizen- 
ship is requisite as a qualification for others. A naturalized citizen 
is not eligible to the office ef President, or Vice President of the 
United States. 

INDIANS. INDIAN TERRITORY. 

H. The Indian territory within the United States composes a 
part of the Union ; but our treaties contemplate it as separated 
from that of the States. Our government treats the Indian tribes 
•as nations and distinct political communities, having territorial 
boundaries within which their authority is exclusive. They are, 
nevertheless, deemed not foreign nations, but domestic and de- 
pendent, and under the protection of the government; and in re- 
spect to intercourse and commerce with foreign nations, they are 
considered to be within the jurisdictional limits of the United 
States, and subject to many of the regulations enacted in regard 
to its own citizens. 

Indians are distinguished as such in the federal constitution and 
our laws. Indians, though residing within the limits of a State, 
are not citizens. See Cons, of U. S., Art. I , Sec. II, See, on 
this subject, further on. Chap. Ill , head '* Commerce with the 
Indians. " 



THE SEVERAL STATES IN THE UNION. 



New York, 

Massachusetts, 

South Carolina, 

Rhode Island, 

Delaware, 

Kentucky, 

Louisiana, 

Arkansas, 

Indiana, 

Iowa, 



Pennsylvania, 

Maryland, 

Georgia, 

New Hampshire, 

Vermont, 

Ohio, 

Missouri, 

Illinois, 

Maine, 

Wisconsin, 



Virginia, 

North Carolina^ 

New Jersey, 

Connecticut, 

Tennessee, 

Michigan, 

Mississippi, 

Alabama, 

Florida, 

California. 



iEERRITORIAL GOVERNMENTS IN THE UNION. 

Minnesota, Kansas, 

Oregon, Utah, 

New Mexico, Washington, 

Nebraska, 

District of Columbia. 



CHAPTER II. 

OF THE CONSTITUTION OP THE UNITED STATES OF AMERICA. 

i 

Of a Gonstitviion of government, in general. 

1. A CONSTITUTION, in its legal and political sense, is a writteii 
declaration of the sovereign will of the people in relation to the 
form and powers of government. 

This is the definition of a constitution, in reference to the subject 
under consideration, and as the term is generally used in America.. 
Properly, that is a constitutional government which is administered 
according to established principles and rules, and which is the result 
of general consent, either actually expressed or fairly implied. A 
constitution, in this sense, signifies the fundamental principles on 
which a government is formed. It may exist in a monarchy, 
aristocracy, democracy, or mixed form of government ,- and it 
may be derived from custom, tradition, or the acts and proceed- 
ings of the government itself, as well as from a written compact. 

A constitution of a country or nation is its fundamental law,, 
supreme, perpetual, according to its terms. 

The term, constitution, is formed from the Latin words con,. 
with, and statuo, to resolve, fix or establish 5 and it means, in the 
sense here used, an agreement establishing a government for a 
people. 

2. Constitutional law is that branch of jurispradence which 
treats of the fundamental principles on which a government is 
formed ; of the practical exercise of the powers of government in 
conformity with them ; and of the construction to be given to them 
in their application. 

Of the Constitution of the United States, its adoption, nature,, 
and authority. 

3. The Constitution of the "United States became established,, 
for the government of the people of the States adopting it, on their 
i:«,tification of it, according to its terms. 

It contains within itself a provision in regard to its ratification. 

"The ratification of the conventions of nine States shall be 
sufficient for the establishment of this Constitution between the 
States so ratifying the same. " Art. YII. 

When was the Constitution of the United States formed, and 
adopted ? 
54 



CH. II.] UNITED STATES. 55 

The plan of the Constitution was adopted by a convention of 
delegates, appointed by the legislatures of all the original States, 
except Rhode Island, on the ITth day of September, ITSI ; and 
in the course of about a year thereafter it was ratified and adopted 
by conventions of delegates, chosen in each of the States by the 
people thereof. 

The Constitution was ratified by the conventions of delegates in 
nine of the States, before the 1.3th of September, 1189, being 
thereby established between those States ; and it was adopted by 
North Carolina, in its convention, in November, 1189, and by 
Rhode Island, in May, 1190, after the Constitution had gone into 
operation, (a) 

5. What is the Constitution of the United States ? 

It is the written declaration of all the people of the United 
States, in their original and sovereign capacity, ordaining and 
establishing a national government, and defining its form and 
powers. 

It is a constitution of government, by the people. It is an act 
of the people, and not of the States in their political capacities. 
"It is an ordinance or establishment of government, originating 
in the consent of the people ; and it binds as a fundamental law 
promulgated by their sovereign authority, and not as a compact 
or treaty entered into, and to exist, between each and all the 
citizens of the United States, as distinct parties." (b) 

"The Constitution of the United States was ordained and 
established, not by the States in their sovereign capacities, but 
emphatically, as the preamble of the Constitution declares, by the 
people of the United States." (c) 

The Constitution of the United States is not a contract between 
the States, as sovereign States, in their organization as such, to 
establish and maintain a government for the common benefit of the 
States, and the inhabitants thereof. Nor is it a contract between 
each State and all the other States, to establish and maintain a 
government for the same ends ; and so that each State reserved to 
itself the right of judging of the meaning of the contract. But 
it may be considered a contract, or compact, between each citizen 
dwelling within the United States and all other citizens therein, in 
order to establish and maintain a government for the good of the 
whole, with limited and defined powers ; and providing that all 
powers not expressly given, or necessarily flowing from those 
which are so given, are reserved to the States or to the people ; with 
authority in the government so created to expound its own powers. 

(a) See Part I., chap I , head 6-8, 20. 

(b) 1 Story on the Cons., p. 446. 

(c) Opinion of the Supreme C-ourt of the Unitea States. 1 Whart. Rep., 
pp. 305, 324. 



56 COXSTITUTION Or THE [PART T. 

The coarentions ■nithin the States, by which the federal Consti- 
tution was adopted, did not represent each a State in its political 
capacitv, bnt the people dwelling within the State, as part of the 
people of the United States. The Constitution was adopted, not 
by the State, but by the people dwelling within the State. 

It is immaterial whether the federal Constitution be called a 
contract, a compact, or grant ; these are names ; the substance is, 
that it is the act of the people ordoAning and establishing a 
government. 

6. The federal Constitution is to be regarded as the result of 
concession and compromise. 

It was the act of the people of the original States, voluntarily 
uniting, through mutual concession and compromise in relation to 
various local interests and other matters, in establishing a govern- 
ment for the Union. And such is it, always, to be considered, in 
its nature, as to its obKgation upon the people, and their allegiance 
to it. 

This variety of interests arose from, principally, the actual 
difference in the extent and situation of the territories of the 
several States, in the number of their inhabitants, and in their 
agricultural productions, the existence of slavery in some of the 
States, and their peculiar laws and institutions. (§) 

Y. The Constitution of the United States went into operation 
on the fourth day of March, 1189, when Congress assembled under 
the new Constitution, and commenced proceedings under it. 

On the 30th of April, 1T89, the first President of the United 
States, George Washington, took the oath of ofl&ce, and the gov- 
ernment then went into operation, in all its departments. 

8. Of what authority is the Constitution of the United States ? 
It is the supreme law of the land. It is obligatory upon the 

general government, in all its departments ; upon the several State 
governments, in all their departments ; and upon the whole people. 
Every Act of Congress, or measure or proceeding of any depart- 
ment of the general government ; every part of a constitution, ' 
law or act of a State, its government or people ; which is repug- 
nant to any of the provisions of the Constitution, is null and void. 

9. Has any State, then, the right to annul or dissolve its rela- 
tions to the Constitution and government of the Union ? 

No, not under the Constitution. The federal Constitution is 
the act of the whole people, including the people of any particular 

(§_) "This difficulty was increased by a difference among the several 
States as to their situation, extent, habits, and particular interests. Thus, 
the Constitution which we now present is the result of a spirit of amity, 
and of that mutual deference and concession which the peculiarity of our 
political situation rendered iudispensable. " Letter of the Convention, signed 
hy George Washington, its President, transmitting the Constitution to Congress. 



CH. II.] UNITED STATES. 57 

State, by which act they established a government for the whole 
people, and made and ordained the Constitution a fundamental, 
supreme and perpetual law, that can be altered or abrogated, in 
any of its provisions, only in the way prescribed by its terms. 
The people of each State have so provided, by uniting in this act 
of the whole people, (d) 

10. The provisions of the Constitution of the United States 
may be, in general, divided thus : 

First, into those which provide for the particular structure and 
organization of the government ; and, secondly, into those which 
define the nature, extent and limitation of the powers vested in the 
general government, impose certain restrictions upon the several 
States, and reserve and secure certain rights to the several States 
and to the people. 

They may, also, be more particularly classed under four heads ; 
first, those which relate to the organization of the legislative 
department ; secondly, those which relate to the organization of 
the executive department ; thirdly, those which relate to the 
organization of the judicial department ; and, fourthly, those 
which define and limit the powers delegated and the rights secured 
or reserved. 

Gonstitutional questions, how determined. 

11. By whom are the provisions of the Constitution of the 
United States to be interpreted, and their meaning and obligation 
finally determined ? 

By the courts of the United States, on all questions capable of 
judicial inquiry and decision, in the regular administration of 
justice. The determination of the Supreme Court of the United 
States, in such cases, is final and conclusive, (e) 

As the Constitution, and the laws of the United States made in 
pursuance of it, and all treaties made under the authority of the 
Union, are declared to be the "supreme law of the land;" and 
the judges in every State are bound thereby ; ' 'any thing in the 
Constitution or laws of any State to the contrary notwithstanding ; ' ' 
as every Act of Congress, or of a State Legislature, and every 
part of the Constitution of any State, which is repugnant to the 
federal Constitution, is null and void ; and as the judicial power 
extends to all cases in law or equity arising under the Constitution, 
laws, and treaties of the United States ; it necessarily belongs to 
that power, whenever a case judicially arises, to determine what 
is the supreme law of the laud ; and the determination of the 
Supreme Court of the United States must be final and conclusive, 

(d) See, above, chap. I , head 8 ; and Part II., chap. I. 
(ej 1 Story on the Constitution, p. 357. 



58 CONSTITUTION OF THE [PART I. 

because tlie Constitution gives to that tribunal power to decide in 
every such case, and gives no appeal from its decision. 

Courts of justice have a right to pronounce, in cases under their 
jurisdiction, legislative acts to be void. 

The courts of justice were intended, as a separate and co-ordi- 
nate department of the government, to act as an intermediate body 
between the people and the legislature, in order, amongst other 
things, to keep the latter within the limits assigned to its 
authority. (/) 

The judiciary is a co-ordinate and independent department of 
the government, the representatives of the people of the Union, 
deriving their authority from them, under the Constitution. 

It is the proper function of the judicial department to interpret 
laws, and by the very terms of the Constitution to interpret the 
supreme law. Its interpretation, then, becomes obligatory and 
conclusive upon all the departments of the general government, 
and upon the whole people, so far as their rights and duties are 
derived from, or affected by that Constitution, {g) 

Judicial decisions of the highest tribunal, by the coui'se of the 
common law, are considered as establishing the true construction 
of the laws, which are brought into controversy before it. The 
particular case is not alone considered as decided and settled ; but 
the principles of the decision are held as precedents and authority, 
to bind future cases of the same nature. This is the constant practice 
imder our whole system of jurisprudence. The general principle 
must have have been in the view of the framers of the Constitu- 
tion ; and is applicable to the decisions of the Supreme Court of 
the IJnited States, on questions arising under the Constitution. 

Whenever the of&cers of any department of the government are 
required to act in a case, not hitherto settled by any proper au- 
thority, they must, in the first instance, decide, each for himself, 
whether or not the act can be done consistently with the Constitu- 
tion. Such acts may become the subjects of judicial examination, 
and their validity, in reference to the Constitution, be thus deter- 
mined. But there are cases, in which the decisions of the legisla- 
tive and executive departments, thus made, must be final and 
conclusive, being from their very nature and character incapable 
of revision. 

The judicial department has, in fact, constantly exercised this 
right of interpretation in the last result ; and its whole course of 
reasonings and operations has proceeded upon the ground, that, 
once made, the interpretation was conclusive, as well upon the 
States, as the people, (li) 

(f) 1 Story ontlie ConstitiTtion, pp. 345, 346, 349, 368. 

(g) 1 Story on the Constitution, p. 357. 

(h) 1 Story on tlie Constitution, p. 345, 346, 349, 368, • 



on. n.] UNITED STATES. 59 

No State has a right, for itself, to abrogate or annul a law of 
Congress, on the ground of its being deemed by the State uncon- 
stitutional. 

Rules of interpretation. 

12. These are some of the most important rules of interpreta- 
tion applicable to the Constitution : 

I. It is to be constructed as a frame, or fundamental law, of 
government, established by the people of the United States, ac- 
cording to their own free pleasure and sovereign will. 

"It is to receive as favorable a construction as the Constitutions 
of the States. Neither is to be construed alone, but each with 
reference to the other. Each belongs to the same system of go- 
vernment ; each is limited in its powers ; and -within the scope of 
its powers each is supreme Each, by the theory of our govern- 
ment, is essential to the existence and due preservation of the 
powers and obligations of the other." 

II. The Constitution of the United States is to receive a rea- 
sonable interpretation of its language and its powers, keeping in 
view the objects and purposes for which those powers were con- 
ferred. 

In case the words are susceptible of two different senses, the 
one more strict, the other more enlarged, that should be adopted 
which is most consonant with the apparent objects and intent of 
the Constitution. 

III. Where the power is granted in general terms, the power 
is to be construed as co-extensive with the terms, unless some clear 
restriction upon it is deducible from the context, either as ex- 
pressly declared, or arising by necessary implication. 

IV. No construction of a given power is to be allowed, which 
plainly defeats, or impairs its avowed objects. 

Y. In the interpretation of a power granted by the Constitu- 
tion, all the oi'dinary and appropriate means to execute it are to 
be deemed a part of the power itself. 

YI. In the interpretation of the Constitution, the existence of 
implied powers is to be admitted. 

Every power which is the means of carrying into effect a given 
power, is implied from the very nature of the original grant. It 
is a necessary and unavoidable implication from the act of cons- 
tituting a government, and vesting it with certain specified 
powers, (f) 

YII. The powers granted by the Constitution to the general 
government exclusively, exist in three cases ; where the Constitu- 
tion has in express terms granted an exclusive power to the Union ; 
where it has granted, in one instance, a power to the Union, and. 

(0 See Part i,, cliap. iii., head "Duties and powers of Congress." 



60 CONgTITTJTION OF THE [PAKT I. 

in another, prohibited the States from exercising the like authority ; 
and where it has granted an authority to the Union, to which a 
similar authority in the States would be absolutely and totally con- 
tradictory and repugnant. 

There may be the exercise of power concurrently in the general 
government and the States, where, although it may be productive 
of occasional interferences in the policy of any branch of adminis- 
tration, it does not imply any direct contradiction or repugnancy in 
point of constitutional authority. 

Unless from the nature of the power, or the obvious results of 
its operations, a repugnancy must exist, so as to lead to a neces 
sary conclusion that the power is exclusive in the general govern- 
ment, the true rule of interpretation is, that the power is merely 
concurrent. 

If a State passes a law clearly within its own constitutional 
powers, still if it conflicts with the exercise of a power given to 
Congress, to the extent of its interference its operation is suspend- 
ed ; for in a conflict of laws, that which is supreme must govern. 

In regard to concurrent powers, there are cases in which the 
legislation of Congress suspends the legislative power of the States 
over the subject matter ; and also cases, in which the State laws 
are inoperative only to the extent of their actual conflict with the 
Acts of Congress. 

Wherever the power given to the general government requires 
that, in order to Idc efficacious and adequate to its end, it should 
be exclusive, there arises a just implication for deeming it ex- 
clusive. Whether exercised or not, in such a case makes no 
difference. 

Wherever the power is not incompatible with a concurrent power 
in the States, either in its natnre or exercise, there the power 
belongs to the States. 

In such a case as the last mentioned, the concurrency of the 
power may admit of restrictions or qualifications in its nature, or 
its exercise. In its nature, when it is excluded in its application 
from objects or purposes, which would control, defeat, or destroy 
the powers of the general government. In its exercise, there is 
a restriction upon it to the extent of any actual conflict of the 
laws and regulations of the States made in pursuance of it with 
those of the general government. 

YIII. Every word employed in the Constitution is to be ex- 
pounded in its plain, obvious and common sense, unless the context 
furnishes some ground to control, qualify or enlarge it. 

IX. Where technical words are used, the technical meaning is 
to be applied to them, unless it be repelled by the context. Where 
the same word possesses a technical and common sense ; the latter 
is to be preferred, unless attendant circumstances point clearly to 
the former. 



OH. II.] rXITED STATES, 61 

The terras used in the Constitution are to be referred for their 
meaning to some standard of admitted authority, from which they 
must have been adopted into the Constitution. What the standard 
of definition shall be, depends upon the term used. If the term is 
one of common use in the ordinary transactions of society, and so 
applied, it shall be taken in its common ordinary acceptation by 
those who use the term ; if it relates to any particular art, science, 
or occupation, its meaning is its common understood sense, accord- 
ing to the usage and its acceptation among men so employed ; if 
it is a term appropriate to the common law, or statute law, or law 
of nations, it must be taken as intended to be applied according 
to its established definition, as a known legal term. 

It is not a correct rule of interpretation to construe the same 
word in the same sense, wherever it occurs in the Constitution. 
The meaning is controlled by the context. The same word may 
bear different meanings ; and the peculiar sense in which it may 
be used in any sentence is to be determined by the context, 

X. That an affirmative provision in a particular case excludes 
the existence of a like provision in every other case ; and that a 
negative provision in a particular case admits the existence of the 
same thing in every other case ; are rules of interpretation to be 
applied to particular cases, according to their nature and circum- 
stances. 

' ' The truth is, that in order to ascertain how far an affirmative 
or negative provision excludes, or implies others, we must look to 
the nature of the provision, the subject matter, the objects, and 
the scope of the instrument. These, and these only can properly 
determine the rule of construction. There can be no doubt that 
an affirmative grant of powers in many cases will imply an exclu- 
sion of all others. In relation to such an instrument as a consti- 
tation, the natural and obvious sense of its provisions, apart from 
any technical or artificial rule, is the true criterion of construction. " 
1 Story on the Cons., pp. 393-434. See Part I , ehap. Ill , 
par. 97, of this work. 

Preamble of the Constitution. 

13. What is the preamble of the Constitution ? 

' ' We, the people of the United States, in order to form a more 
perfect Union, establish justice, insure domestic tranquillity, pro- 
vide for the common defence, promote the general welfare, and 
secure the blessings of liberty to ourselves and to our posterity, do 
ordain and establish this Constitution for the United States of 
America." 

It is the introductory paragraph of the Constitution, setting 
forth the parties who established it, and the objects for which it 
was adopted. 

6 



63 CONSTITUTION OP THE [PAET T. 

It is an admitted maxim, in fhe ordinary course of the adminis- 
tration of justice, that a preamble of a statute is a key to open the 
minds of the makers, as to the mischiefs which are to be remedied, 
and the objects which are to be accomplished, by the provisions of 
the statute. It is founded upon the universal principle of inter- 
pretation that the will and intention of the legislature is to be 
regarded and followed. 

In a fundamental law, or constitution of government, great 
attention should be given to the intention of the framers as stated 
in the preamble. And accordingly we find that the preamble of 
the Constitution has been constantly referred to by statesmen and 
jurists, to aid them in the exposition of its provisions. 

14. The preamble cannot be resorted to in order to enlarge the 
powers confided to the general government, or any of its departments. 

It cannot confer any power per se, in itself; it can never 
amount, by implication, to an enlargement of any power expressly 
given. It can never be the legitimate source of any implied power ; 
when otherwise withdrawn from the Constitution. Its true ofl&ce 
is to expound the nature, extent, and application of the powers 
actually conferred by the Constitution ; and not substantially to 
create them. For example, the preamble declares one object to 
be "to promote the common defence. ' ' No one can doubt that 
this does not enlarge the powers of Congress to pass any measures 
that they may deem useful for the common defence. But where 
the terms of a given power may admit of different constructions ; 
if one would promote and the other defeat the common defence, 
the former ought, on the soundest principles of interpretation, to 
be adopted. (j) 

Amendments to the Constitution. 

15. Does the Constitution of the United States provide how 
amendments may be made to it ? 

" The Congress, whenever two-thirds of both houses shaU deem 
it necessary, shall propose amendments to this Constitution, or, on 
the application of the legislatures of two-thirds of the several 
States, shall call a convention for proposing amendments ; which, 
in either case, shall be valid, to all intents and purposes, as part 
of this Constitution, when ratified by the legislatures of three- 
fourths of the several States, or by conventions in three-fourths 
thereof, as the one or the other mode of ratification may be pro- 
posed by the Congress : Provided, that no amendment which may 
be made prior to the year one thousand eight hundred and eight, 
shall in any manner affect the first and fourth clauses in the ninth 
section of the fii'st article ; and that no State shall, without its 
consent, be deprived of its equal suffrage in the Senate." Cons, 
of U. S. Art. T. 

(j ) 1 Story on the Cons., p. 445. 



en. n.] UNITED STATES. 63 

16. There have been twelve amendments incorporated, in the 
manner prescribed by the above provision, into the federal Con- 
stitution, since its adoption. They are treated of, under the pro- 
per heads, in this work. See Part T , chap. V. VI. YII. 

These amendments were made soon after the adoption of the 
Constitution. Objections to it had been urged, on the ground 
that it contained no formal Bill or Declaration of Rights ; (k) and 
on this account principally the amendments were adopted. The 
first ten amendments may be regarded as a Bill of Rights. There 
\iave been various other amendments, at different times, pro- 
posed by Congress, and considered by the Legislatures of the 
States ; but they were not ratified by the requisite number of 
States. 

11. It is a general principle of liberty that the people have the 
right to alter, reform or abolish their government, whenever they 
deem it necessary. (I) 

It is one of the great excellencies of the federal Constitution, 
that it provides in itself a mode for its amendment, in which such 
an object may be attained peaceably and readily, and yet not with- 
out proper care and deliberation. 

(k) See Part I. chap, iii , and Part I. chap. vii. 

(I) See Part II, chap, iii, head "Supreme power of the people." The 
basis of our political systems is the right of the people to make and alter 
their Constitutions of government. — Washington's Farewell Address. 



CHAPTER III. 

OF THE CONGEESS OF THE IIXITED STATES. 

1. The legislatiTe power of the general government is rested 
in the Congress of the United States. 

By the federal Constitution, all the legislative powers therein 
granted are vested in the Congress of the United States, consist- 
ing of the Senate and House of Representatives. Ai^t. I. Sect. 1, 

2. The legislative power of a government is the power of 
making laws ; and that branch of a government which has this 
power is the legislative department of it. A legislature is that 
body of persons with has the power of making laws for a State. 
Congress is the national Legislature. 

3. The division of the legislature into two separate and inde- 
pendent branches is a wise plan. It is founded on the strongest 
reasons of policy, and its advantage has been proved by ex- 
perience. 

4. How do the two Houses of Congress act, in relation to each 
other, in making laws ? 

In their deliberations and proceedings for the passing of laws, 
they act separately and independently, having co-ordinate powers ; 
though the assent of both Houses is necessary to the final enact- 
ment of a law. 

5. Their powers with respect to passing laws are, in general, 
equal. In regard to some matters they are vested respectively 
with distinct and exclusive powers. The distinction will be 
observed in the references hereinafter made to the joint and 
separate powers of the two Houses. 

6. The legislative powers of Congress include the power to 
originate and propose bills, or di'afts or projects of laws, which 
are conformable to the Constitution, and to discuss, deliberate and 
decide thereon. The manner of proceeding on bills by CongTess, 
and of finally passing and enacting laws of the United States, is 
treated of under the proper head in this Chapter. 

7. In general, the power to enact laws includes, by implication, 
the power to repeal former laws. Congress cannot pass a law 
which may not be repealed by it. One CongTess cannot, by its en- 
actment, which becomes a law, bind another Congress, so that the 
latter cannot repeal the law, or legislate upon subject the matter of it. 
This is so, except in cases where the federal Constitution expressly 

64 



CH. in. J CONGRESS OF THE UNITED STATES. 65 

provides otherwise ; as iu respect to the salaries of the President 
of the United States and judges of the courts, which cannot be 
reduced during their terras of office. 

8. Is there a new Congress every second year ? 

The members of the House of Representatives and one-third of 
the Senate being chosen every second year, there is a new Congress 
by the meeting of both Houses every second year. And the Con- 
gress for the time being is in fact dissolved, by the operation of 
the Constitution and laws, on the third day of March in every 
second year. A new Congress is organized, at its meeting, every 
second year. 

There has been a Congress every two years since the organiza- 
tion of the- general government under the federal Constitution. 
The present Congress, which commenced on the first Monday of 
December in the year 1856, is the thirty- fourtli. 

SENATE OF THE UNITED STATES. 

9. The Senate of the United States is composed of two Sena- 
tors from each State, chosen by the Legislature tliereof for six 
years ; and each Senator shall have one vote. Cons, of U. S. 
Art. I , Sect. III. 

Each of the Senators from a State acts, in all respects, in- 
dependently of the other ; exercising his power, and discharging 
his duties, according to his own judgment and discretion. Each 
Senator has the right to vote on all questions before the Senate. 

10. Vacancies in the Senate of the United States are to be 
filled in the mode prescribed by the federal Constitution. 

' ' If vacancies in the Senate of the United States happen by 
resignation, or otherwise, during the recess of the Legislatiu-e of 
any State, the executive thereof may make temporary appoint- 
ments, until the next meeting of the Legislature, which shall then 
fill such vacancies." Cons, of U. S. Aii. I, Sect. Ill, 2. 

It seems, that a Governor of a State cannot in the recess of the 
Legislature appoint a Senator to fill a vacancy, which has not 
actually occurred, but which will happen. 

11. A State cannot be deprived, without its consent, of its 
equal representation in the Senate of the United States, by an 
amendment of the federal Constitution ? 

' ' No State, without its consent, shall be deprived of its equal 
suffrage in the Senate. ' ' Cons, of U. S. Art. Y. 

12. The executive of a State is the person, (or body of per- 
sons), 'who has the power of executing or carrying into effect the 
laws of the State, and, in most cases, of making appointments to 
office ; being generally the governor of the State. 

Where the term of a Senator of the United States has expired, 

a* 



66 CONGRESS OF THE TXITED STATES. [PART I. 

during the session of the Legislature of the State, and the Legis- 
lature has not chosen a Senator, can the Governor of the State, 
during the recess of the Legislature, make the temporary appoint- 
ment ? Where such a vacancy has happened by resignation or 
otherwise, during the session of the State Legislature and the 
Legislature has not chosen a Senator, can the Executive of the 
State, during the recess of the Legislature, appoint a Senator until 
its next meeting ? 

13. The federal Constitution provides as to the persons who 
may be chosen Senators of the TJuited States. 

"1^0 person shall be a Senator who shall not have attained the 
age of thirty years, and been nine years a citizen of the United 
States, and who shall not, when elected, be an inhabitant of that 
State for wnich he shall be chosen." Cons, of U. S , Art. I , 
Sect. Ill , 3. 

14. ' ' The times, places and manner of holding elections for 
Senators and Representatives, shall be prescribed in each State by 
the Legislature thereof; but the Congress may at anytime, by 
law, make or alter such regulations, except as to the place of 
choosing Senators." Cons, of U. S , Art, I , Sect. lY. 

Congress has passed a law regulating the manner of electing 
Representatives, (m) but has not made any enactment in regard 
to the election of Senators. 

15. Senators of the United States may be elected either by the 
joint vote, or by the concurrent votes of the two Houses of the 
Legislature of a State. 

It appears to be settled that- the Legislature of a State may 
prescribe either mode for electing its United States Senators. 
Both modes are used, in different States ; though generally the 
choice of Senators is made by a concurrent vote. 

On a joint vote, the members of both branches of the Legisla- 
ture assemble together, and give a united vote numerically ; on a 
concurrent vote, each branch gives a separate and independent 
vote. 

The executive of a State has not the right of a negative upon 
such elections by the Legislature, as in cases where the State con- 
stitution gives him a qualified negative upon the laws. 

Where the members of the Legislatui-e of a State are assembled 
together, in order to elect a United States Senator by a joint vote, 
they constitute a convention for that purpose. 

Such convention may meet at any time, and on its own adjourn- 
ment, during the session of the Legislature, in conformity with the 
law. It seems, it cannot meet and act at a time when the Legis- 
lature is not in session. 

The mode and time of such election are, in general, regulated by 
a law of the State. See Part II., chap. lY^ 

(m) See in tliis cliap , par. 46-50. 



ClI. III.] CONGRESS OF TIIi: XJNITED STATES. 67 

16. Tiie Senate of the ITuitcd States consists, at the present 
time, of sixty-two members, representing the thirty-one States of 
the Union. 

11. Each State has thus its equal voice and equal rights in the 
Senate of the United States, without regard to a difference of 
population, wealth, or territory; and is represented therein as a 
sovereign and independent community; each State being sovereign 
and independent in its proper sphere. 

The Senate is, then, constituted upon the principle of equal 
representation, in the government, of all the States. The States 
are thus represented in their political capacities, and as such made 
active members of the Union. 

18. The Senators are elected, one-third of their whole number 
every two years. 

Immediately upon the first election, they were divided, as directed 
by the federal Constitution, into three classes, the seats of the first 
class to be vacated at the expiration of the second year, and of the 
second class at the expiration of the fourth year, and of the third 
class at the expiration of the sixth year ; so that one-third of the 
Senate is chosen every second year. 

On the admission of a new State into the Union, the two Sena- 
tors first elected from it are assigned each to one of these classes. 
It is generally done by lot 

This classification is in order that the terms of service of the 
Senators from each State may expire at different periods, and that 
there may not be a vacancy at the same time in the seats of both 
Senators from the same State. 

19. The term of office of a Senator of the United States is six 
years. The regular term is six years from the fourth day of March 
after his election. When a vacancy occurs, a Senator is elected 
for the unexpired period of the term. A person is re-eligible 
indefinitely as Senator of the United States. 

20, The Vice President of the United States is President of 
the Senate. 

* ' The Yice President of the United States shall be President 
of the Senate, but shall have no vote unless they be equally 
divided." Cons, of U. S , Art. I, Sect. Ill , 4. 

21, In presiding over the Senate, the Vice President of the 
United States does not vote, except that he gives a casting vote 
in case of a tie in the votes of the Senators. He never joins in 
their deliberations or debates. The appointment of the comniittees 
of the Senate is either by him or by the election of the Senators, 
iis determined by the rules of proceeding or resolution of the 
Senate. 

It appears that the Vice President, presiding over the Senate, 
has a right to give a casting vote, when the votes of the Senators 



68 co>'GKi:ss or the l::iti:i) states. [part i. 

are equally divided, on nominations to office by the President, on 
executive business, and on elections for officers of the Senate, as 
well as on legislative affaii-s. The late practice, justified by for- 
mer precedents, has been in accordance ■nith this view of the 
constitutional right and duty of that officer. 

' ' The Senate shall choose a President of the Senate -pro 
tempore, in the absence of the Yice President of the United 
States, or when he shall exercise the office of President of the 
United States." Cons, of U. S., Art. I , Sect. Ill , 5. 

Senators of the United States are sometimes called federal 
Senators, as distinguished from Senators in the legislature of a 
State. {n) 

22. The Senate of the United States may sit when Congress is 
not in session, for the transaction of executive business. Delibe- 
rating and acting on treaties and nominations to office by the 
President is called its executive business. 

23. The Senate is organized when a quorum of its members 
has met agreeably to the Constitution, having taken the requisite 
oath or affirmation of office ; with its proper President and other 
officers. 

Appointments to office. 

24. The Senate is vested vAt\i an important power in regard 
to the appointing of officers of the general government. 

The President of the United States ' ' shall nominate, and by 
and with the advice and consent of the Senate shall appoint 
ambassadors, ocher public ministers and consuls, judges of the 
Supreme Court, and all other officers of the United States, whose 
appointments are not herein otherwise provided for, and which 
shall be established by law. But the Congress may, by law, vest 
the appointment of such inferior officers, as they may think proper, 
in the President alone, in the courts of law, or in the heads of 
department." Cons, of U. S , Art. II , Sect. II., 2. 

When the Senate advises and consents to an appointment to 
office, it is said to confirm the nomination ; otherwise, to reject it. 

25. The Senate can give its advice and consent to appoint- 
ments to office only on such nominations, and after the nominations 
are made and laid before it, by the President. It cannot act in 
reference to appointments to office previously to nominations 
therefor by the President. 

The subject of the nomination and appointment of officers of the 
general government is more particularly considered in a subsequent 
chapter of the work, (o) 

(n) See above, cliap. I , 23, 24. 
Co) See Part I , chap. VIII. 



I 



CH ni.] CONGRESS OF THE UNITED STATES. 69 

Impeachments. 

26. The power of trying impeachments of officers of the general 
government is vested exclnsivelyin the Senate of the United States. 

" The Senate shall have the sole power of trying all impeach- 
ments. When sitting for that purpose they shall be on oath or 
affirmation. When the President of the United States shall be 
tried, the Chief Justice of the United States shall preside. And 
no person shall be convicted \nthout the concurrence of two-thirds 
of the members present." Cons, of U. S , Art. I, Sect. Ill, 6. 

27. When sitting for the purpose of trying impeachments, the 
Senate is a court of justice. In such cases, it is governed by, and 
the proceedings before it are conducted agreeably to, the principles 
and rules of law under the Constitution. 

28. An impeachment is a legal accusation, before a competent 
tribunal, against a public officer for a crime or misdemeanor, com- 
mitted in the exercise of his office. 

29. The federal Constitution prescribes what officers may be 
impeached before the Senate of the United States. 

' ' The President, Vice President, and all civil officers of the 
United States, shall be removed from office on impeachment for, 
and conviction of treason, bribery, or other high crimes and mis- 
demeanors. " Cons, of U.S. Art. II. Sect. TV. 

30. By civil officers, in this provision of the Constitution, are 
meant all public officers of the general government, except military 
and naval officers, and members of Congress. 

31. It has been adjudged that the term officers, as used in the 
Constitution, does not include members of Congress. Members of 

"Congress may be punished for disorderly behaviour or contempt, 
or may be expelled by the Houses to which they respectively be- 
long, (jj) Military and naval officers are punishable by courts 
martial, according to the rules established by Congress for the 
regulation of the army and navy. 

32. The persons liable to impeachment before the Senate of the 
United States are those who hold or have held public offices under 
the United States ; and all executive and judicial officers of the 
United States are included. 

33. Such an impeachment can be preferred only by the House 
of Representatives of the United States. 

The House of Representatives has the sole power of impeach- 
ment, to be tried by the Senate. Cons, of U. S. Art. I, Sect. II. 5. 

The House of Representatives only has the power to determine 
whether such an impeachment shall be made, or preferred, to pre- 
sent it to the Senate, and, as the accusing party, to conduct the 
prosecution of it before that tribunal. 

( p) See further on in this chapter. 



YO CONGRESS OF THE UNITED STATES. [PART I. 

34. The judgment or punisliment in ease of conyietion, on any 
such impeachment is limited by the Constitution. 

"Judgment in cases of impeachment shall not extend further 
than to removal from office, and disqualification to hold and enjoy 
any office of trust or profit under the United States ; but the party 
convicted shall, nevertheless, be liable to indictment, trial, judg- 
ment, and punishment, according to law." Cons, of U. S. Art. 
I. Sect. III. 1. 

35. When upon conviction on an impeachment before the Se- 
nate, the judgment has been removal from office, and disqualifica- 
tion to hold office, the pardon of the President of the United States 
cannot restore the competency of the offender. 

And though the President may grant a pardon for the same act, 
in case of a conviction in the common course of law, the pardon 
can only extend to the punishment imposed by the ordinary court, 
without affecting the sentence of the Senate on the impeachment. 

36. The federal constitution declares for what offences such 
impeachments may be made. 

The offences for which the officers described in the Constitution 
may be impeached, are such as they may commit officially, or by 
color ot office ; being neglect of duty, violations of public trust, 
acts contrary to the Constitution and laws, and offences against 
the general government ; which are included in the offences of 
' ' treason, bribery, and other high crimes and misdemeanors. ' ' 
The treason mentioned is treason against the government of the 
Union. 

These offences are denominated political offences, .or "high 
crimes and misdemeanors, " a§ their effects and consequences are 
immediately injurious to the body politic or Union itself. 

All officers are liable to be indicted and punished, under the 
criminal law, for wilful neglect of duty and misbehaviour in office ; 
and for bribery and other corruption in office. And they may be 
prosecuted for such offences before the ordinary tribunals of jus- 
tice, in the due course of law, notwithstanding any impeachment 
against them, and either before or after an impeachment. 

37. The Senate of the United States, when organized for the 
purpose of trying an impeachment, is a judicial tribunal or court 
of justice, and is called " The comi for the trial of impeachments. " 

A quorum of the Senate, or a majority of the Senators, is neces- 
sary to constitute the Court, and is sufficient for that purpose ; 
although no conviction can take place without the concurrence 
of two-thirds of the members present. 

The Vice President of the United States, being President of the 
Senate, presides in the Court, when present ; except when an im- 
peachment against the President of the United States is tried, on 
which occasion the Chief Justice of the United States presides. It 



CU.in.] COXGRES.-; OF THE UNITED STATES. Yl 

seems that the Vice President ought not, in such a case, to sit at 
all in the Court. 

An impeachment is preferred to the Senate by "Articles of 
Impeachment," which is the \mtten accusation against the party 
impeached, containing the formal specification of the charge. 

Proceedings for the impeachment of a federal officer arc insti- 
tuted, in the first place, by petition or memorial, making the com- 
plaint, and setting out the alleged offence, to the House of Repre- 
sentatives of the IJnited States ; or by its resolution. 

If the House of Representatives determines, after investigation, 
to prefer an impeachment, it causes Articles of Impeachment to be 
drawn up, and appoints a committee of its number to act as its 
Managers in the case. These Managers prefer the Articles to the 
Senate, and afterwards prosecute the case, on the trial, on the part 
of the House of Representatives. 

The Articles of Impeachment are preferred by the House of 
Representatives in the name of the United States of America, and 
charge the alleged offence as committed against them ; and from 
the time when the articles are preferred, the case is of the nature 
of a criminal prosecution, before a court of justice. 

The Senate causes the accused person to be summoned, by its 
sergeant-at-arms, or other executive officer, to appear before it, in 
order to answer the charge. An answer or plea is received. He 
is then called the respondent. And, if necessary, a trial is ordered 
to be had by the Senate. All proper process, in relation to the 
accused party, or for summoning and compelling the attendance of 
witnesses, on the part of either the defende or prosecution, is issued 
by the Senate, and served by its officers. 

A trial on impeachment before the Senate is conducted as an 
ordinaiy trial in the common law courts. It is held in public ; the 
House of Representatives being present as the prosecutors, and the 
managers prosecuting on their behalf; and the 7'espondenf, or ac- 
cused party, being entitled to be heard by himself or counsel. It 
is not necessary that the accused party should be personally present, 
as the trial may proceed in his absence, if he have had due notice 
to appear. 

The same general rules of evidence prevail on the trial of an 
impeachment as govern a court of justice in an ordinary case. 

The consultations of the members of the Senate, on all questions 
and points that arise in the course of the trial, are had in private ; 
but their determinations thereon are given by their votes severally 
in public. So, when the examination and hearing of the case are 
completed, the Senators deliberate in private on the question of the 
guilt or innocence of the accused ; but they give their votes thereon 
in public, and judgment or sentence is pronounced accordingly, 
by their presiding officer. 



72 CONGRESS OF THE TN^TED STATES. [PAUT I. 

"The Constitution does not declare that the Yice President 
shall be restricted on the trial of impeachments, as in legislative 
proceedings, to a casting vote ; and as he is constituted one of the 
judges of the court,, by being appointed to preside vrithout any 
restriction, it seems to follow that he is entitled to vote in the same 
manner as the other judges. The same reasoning would establish 
a similar right in the Chief Justice of the United States, when pre- 
siding on the trial of the President, "(r) 

Foicer of the Senate as to treaties. 

38. The Senate is vested with a veiy important power with 
respect to treaties. 

' ' The President of the United States shall have power, by and 
with the advice and consent of the Senate, to make treaties, pro- 
vided two-thu'ds of the Senate concur." Cons, of U. S. Art. II, 
Sect. II. 2. 

The federal Constitution provides that treaties so made shall be 
the supreme law of the land. 

" All treaties made, or which shall be made under the authority 
of the United States, shall be the supreme law of the land ; and 
the judges in every State shall be bound thereby, any thing in the 
constitution or laws of any State to the contrary notwithstanding. " 
Cons, of U. S. Art. TI. 2. 

The other provisions of the federal Constitution, with respect to 
treaties, are given under appropriate heads in this work, with some 
observations defining the term, and in reference to the power of 
making treaties, the manner of negotiating them, and their effect, (q) 

or THE HOrSE OF REPRESENTATIYES OF THE TTNTTED STATES. 

Election of members thereof Its organization and officers. 

39. "The House of Representatives of the United States shall 
- be composed of members chosen every second year, by the people 

of the several States ; and the electors in each State shall have the 
qualifications requisite for electors of the most numerous branch of 
the State legislature." Cons, of U. S. Art. I , Sect. II. 

The members of this branch of the national Legislature are 
elected immediately by the people, in the manner directed by the 
laws of the States respectively, made in conformity with the pro- 
visions of the federal Constitution and the laws of the United 
States. 

40. The right of suffrage, in eleetiag them, is not wholly de- 

(r) Diaer's Cons. Jurispmdence, p. 93. 
(q) See the General Index. 



CII. III.] CONGRESS OF THE UNITED STATES, 73 

teriuined by the federal Constitution, nor positively fixed to be 
uniform in all the States, upon a principle common to all ; but the 
constitutional provision is suited to the existing diversities in the 
several States in regard to the qualifications of voters of members 
of their Legislatures respectively ; (r) and is, in effect, it seems, 
the extension of the right, for the most part, according to the 
largest liberty. 

41. The federal Constitution declares, who may be a member 
of the House of Representatives of the United States. 

' ' No person shall be a Representative who shall not have at- 
tained to the age of twenty-five years, and been seven years a citi- 
zen of the United States, and who shall not, when elected, be an 
inhabitant of that State in which he shall be chosen." Cons, of 
U. S. Art. I. Sect. II. 2. 

A person having these qualifications may be elected a Represen- 
tative ; and it seems no other qualification can be required by any 
State. 

42. The Representatives are apportioned among the several 
States, according to the number of their inhabitants respectively, 
to be computed in the manner prescribed by the Constitution. 

' ' Representatives and direct taxes shall be apportioned among 
the several States, which may be included within this Union, ac- 
cording to their respective numbers, which shall be determined by 
adding to the whole -number of free persons, including those bound 
to service for a term of years and excluding Indians not taxed, 
three-fifths of all other persons." Cons, of U. S. Art I 
Sect. II. 3. 

43. By ' ' all other persons, ' ' as mentioned in this provision, are 
meant, or among them are included, slaves, " three-fifths "♦ of 
whom are to be computed in making up the numbers of the States 
respectively, according to which the Representatives shall be ap- 
portioned among them. And this rule applies, also, to the ap- 
portionment of direct taxes. 

44. The House of Representatives is, then, constituted on the 
principle of proportional representation ; every district or terri- 
torial division of the Union having a representation proportional 
to its population. 

This method of determining the number of the population of 
a State is called the federal method, population so computed 
federal population, being according to the federal Constitution. 

The manner of computing the number of inhabitants in a State, 
according to which the number of its Representatives in Congress 
is fixed, is different in the slave-holding States from what it is in 
the other States. In a slave-holding State the number of white 

{)•) See Part II. chap. iv. 

T 



74 CONGRESS OF THE UNITED STATES. [PART 1. 

persons, and tliree-fiftlis of the slaves, make tlie number, which 
determines how many Representatives it may have, in the appor- 
tionment of them among the several States. 

The c-itizens of the slave-holding States have more Represen- 
tatives in Congress than an equal number of white persons in the 
other States. As Representatives and direct taxes are apportion- 
ed among the States by the same rule, the slave-holding States are 
liable to a greater tax in proportion, when direct taxes may be 
laid by Congress. 

45. The federal Constitution proAides a limitation to the num- 
ber of Representatives, in directing the manner of their appoint- 
ment. 

" The number of Representatives shall not exceod one for every 
thirty thousand, but each State shall have at least one Representa- 
tive." Cons, of U. S. Art. I. Sect. II. 3. 

46. An apportionment of Representatives among the several 
States is required by the federal Constitution to be made at certain 
periods. 

An enumeration, or census, of the inhabitants of the United 
States, as directed by Act of Congress, is to be made every ten 
years, and a new apportionment had thereon, according to the 
relative population of the States. Cons, of U. S. Art. I. Sect. II. 
3. The first enumeration was made in 1Y90. 

4t. "The times, places and manner of holding elections for 
Senators and Representatives, shall be prescribed in each State by 
the Legislatui'e thereof; but the Congress may make or alter such 
regulations, except as to the place of choosiug Senators." Cons, 
of U.S. Art. I. Sect. lY. 1. 

48. Yacancies among the Representatives are to be filled in the 
manner du-ected by the federal Constitution. 

' ' When vacancies happen in the representation from any State, 
the executive authority thereof shall issue writs of election to fill 
such vacancy. "(s) Cons, of U.S. Art. I. Sect. II. 6. 

A Representative is thus elected for the unexpired portion of the 
term which had become vacant. 

49. As to the mode of electing Representatives of the United 
States, the course has generally been, that after the apportionment 
of Representatives among the several States, by Act of Congress, 
the Legislature of each State has prescribed the manner of electing 
the number of Representatives to which it was entitled, either by 
general ticket for the whole State, or by districts, each district 
electing one or more Representatives, according to its population, 
enumerated by the law of the State. 

50. The mode of electing Representatives in Congress, at the 
present time, (1856,) is fixed by Act of Congress. 

(s) See, above, in this cliajpter, 12. 



CH. IV.] CONGRESS OP THE UNITTD STATES. T5 

By the Act of Congress, in 1842, making the apportionment 
of Representatives among the several States, it was directed that 
the election of the Representatives in each State should be by 
districts, which is the present mode. 

51. The number of Representatives in Congress, as fixed by 
the last apportionment, in 1850, is two hundred and thirty-three. 
To this number is now to be added one Representative from the 
IJtate of California. 

The apportionment of Representatives is made by dividing the 
aggregate of the federal population of the United States by the 
whole number of Representatives, the quotient being the ratio of 
apportionment ; and the federal population of each State being- 
divided by that ratio, the quotient g'ives the representation allowed 
to the particular State ; and where the number of Representatives 
so ascertained is not sufficient, in consequence of fractions of popu- 
lation in the several States, there being assigned an additional 
number to each of so many States having the largest fractious, for 
its fraction, as may be necessary to make the whole number of 
Representatives in Congress. 

52. The present ratio on which the Representatives are appor- 
tioned among the several States, by Act of Congress, is one Re- 
presentative to every 93,423 inhabitants, and one additional Re- 
presentative for every remaining fraction exceeding the half of that 
ratio, {t) 

53. The right of choosing its own Speaker, and other officers, 
is vested in the House of Representatives by the Constitution. 

" The House of Representatives shall choose tlieir Speaker, and 
other officers." Cons. of U. S. Art. I. Sect. II. 5. 

54. The Speaker is the presiding officer of the House, appointed 
to preserve order during its sittings, and to sec that its business is 
conducted according to the rul^s of proceeding. He is g-enerally 
authorized to appoint the standing and select Committees of the 
House, and to j>erform other duties pertaining to its transactions ; 
a-nd he authenticates, by his signature, the bills, resolutions and 
acts of the House. 

The House elects one of its own members to be the Speaker. 
His right to vote is regulated by the rules of proceeding. By the 
present rules it is provided that in all elections by the House the 
Speaker shall vote ; in other cases he shall not vote, unless the 
House be equally divided, or unless his vote, if given to the minor- 
ity, will make the division equal, and in case of such equal division, 
the question shall be lost. His vote in case of an equal division 
of the House is called his casting vote. It must be implied that 

(i) See a table showing tlie number of Repre.ieutativ'e.? fioin e?,ch State, 
Its population, federal number, &c., in the Appendix, luUe C. 



*IQ CONGRESS OF THE UNITED STATES. [PAET I. 

such casting vote cau be given only in cases in which a majority 
of votes is sufficient for a decision. 

The Speaker is, in general, not allowed to take part in the de- 
bate. He may do so, however, by leave of the House, another 
person being assigned to the chair ; and by the standing rules of 
the House, in certain stages of the progress of a bill or resolution, 
when he is not presiding, he may participate in the deliberations, 
debates, and proceedings, as any other member. Some observa- 
tions are made, which have a bearing on this subject, under another 
head in this work, in reference to the mode of proceeding in passing 
a law in the two Houses of Congress, (u) 

55. The Speaker and other officers of the House are elected at 
the commencement of every new Congress, to continue for the term 
of that Congress ; although they may be removed from office at 
the pleasure of the House. 

The officers of the House, besides the Speaker, are a sergeant- 
at-arms, a door-keeper, and their assistants. 

56. There is a delegate to Congress from each Territorial go- 
vernment of the United States. A delegate chosen by the Legis- 
lature of each Territorial government has a seat in. the House of 
Representatives, vdih the privilege of taking a part in debate, but 
without the right to vote. 

51. The election of members of the House of Representatives 
of the United States, is not held at the same time in all the States. 
Congress not having fixed the time of holding such election, it is 
held at diiferent times in the several States, agreeably to the laws 
thereof respectively. 

58. Term of office. The term of of6.ce of a Representative in 
Congress is two years. 

The term of every Representative expires Avith the third day of 
March of the second year of the Congress. In many of the States 
the Representatives are elected previously to the fourth day of March 
of the first year of every Congress, to serve for two years ; but in 
some of the States, by the laws thereof respectively, they are elected 
subsequently to that day. In Pennsylvania, Representatives are 
elected to serve for two years, as has been stated. A person elected 
to supply a vacancy serves for the unexpired i>art of the term of the 
Representative, in whose place he was elected. 

A person may be re-elected a Representative in Congress any 
number of times iadefinitely. 

59. The House of Representatives is organized, when a quorum 
of its members has met, agreeably to the Constitution, having taken 
the requisite oath or alfirmation of ofiice, with its Speaker and other 
officers. 

(u) See, in tMs chapter, par. 198-9. 



CH. III.] CONGRESS Or T-IE LWITED STATES. 7T 

Each Representative has a right to a vote on all questions ; e.x- 
cept in case of an election of President of the United States hj the 
House, when all the Representatives from a State can cast only 
one rote. 

OP THE AlEMBERS OF CONGRESS. 



Oath of office. 

60. The oath of office of a member of Congress is prescribed 
1)7 the federal Constitution, 

"The Senators and Representatives before mentioned," — "shall 
be bound by oath or affirmation, to support this Constitution!' 
Cons, of U. S. Art. VI. 3. 

61. The oath or affirmation is administered to the members by 
the Speaker of the House, or President of the Senate respectively, 
at the commencement of a new Congress, or to a member on taking 
his seat in either House. There is no other oath of office required 
to be taken by a member of Congress. 

Privilege from arrest or civil suit. 

62. Members of Congress have, under the Constitution, certaiit 
privileges from arrest. 

The Senators and Representatives "shall, in all cases except 
treason, felony, and breach of the peace, be privileged from arrest 
during their attendance at the session of their respective Houses, 
and in going to, and returning from the same." Cons, of U. S. 
Art. I. Sect. YI. 1. 

63. They have, also, privileges at common law, in regard to 
civil suits. 

They are privileged from arrest, summons, citation, or other civil 
process, during their attendance on the public business, confided 
to them. It has been so adjudged by the courts of justice.* 

Freedom of debate, 

64. Members of Congress have certain constitutional privileges 
as to speeches or debates in the Houses respectively. 

"For any speech or debate in either House they shall not be 
questioned in anv other place." Cons, of U. S., Art. I.,. 
Sect. VI., 1. 

65. The meaning of the provision is, that for words uttered in 
debate, or in the course of business, in Congress, they shall not 
be liable to any prosecution, civil suit, or proceeding at law ; be 

* 4 Dallas' Reports, p. 107, 371. 

1* 



T8 CONGRESS OF THE UNITED STATES. [PART I. 

*' questioned " in any judicial case. Its object is, to secure free- 
dom of opinion and speech in the deliberations and transactions 
of Congress. 

The debates in Congress have, for many years, been reported 
and published by the order of Congress, and at the public expense. 

Incompatibility of offices. 

66. What is the provision of the federal Constitution as to 
members of Congress holding offices under the authority of the 
United States ? 

' ' No Senator or Representative shall, during the time for which 
he was elected, be appointed to any civil office under the authority 
of the United States, which shall have been created, or the emolu- 
ments whereof shall have been increased, during such time ; and 
no person holding any office under the United States shall be a 
member of either House during his continuance in office. ' ' Cons, 
of U. S,, Art. I., Sect. VI., 2. 

6Y. It is requisite that a member of Congress should resign 
his seat in Congress before he can be appointed to an office under 
the United States. And an officer under the United States must 
resign in order to be enabled to become a member of Congress. 

The prohibition in this clause of the Constitution is not consid- 
ered to extend to military officers. 

It is designed by this provision to preserve the independence 
and impartiality of the members of Congress, and their freedom, 
in the discharge of their duties, from any improper influence of any 
other department of the government. 

68. Members of Congress cannot at the same time be members 
of the Legislature of any State. It is generally so provided by 
the constitution or laws of each State, (o) 

69, Nor can a member of Congress hold any civil office in 
State. 

It is generally provided by the constitution and laws of each 
State that no member of Congress, nor any person holding or 
exercising any office or appointment under the United States, shall 
at the same time hold any office in the State. (§) 

Compensation of members of Congress. 

10. The federal Constitution provides for the compensation of 
members of Congress. 

"The Senators and Representatives shall receive a compensa- 
tion for their services, to be ascertained by law, and paid out of 
the treasury of the United States." Cons, of the U. S., Art. I., 
Sect. VI. 

(v) See Part II., chap. VIL f§J See Part II.. chap. IV. 



en. III.] CONGRESS OF THE UNITED STATES. 79 

The compensation of members of Congress, by the Act of Con- 
gress of the 22d of January, 1818, was eight dollars a day to each 
member while attending the session of Congress, and eight dollars 
for every twenty miles of estimated distance, by the most usual 
road from his place of residence to the seat of government, at the 
commencement and end of every session of Congress ; each member 
of the Senate to receive the same daily allowance and pay, for his 
attendance on and travelling to and from every meeting of the 
Senate in the recess of Congress ; the President of the Senate pro 
tempore, and the Speaker of the House, to receive each eight 
dollars for every day's attendance on their respective Houses, in 
addition to their compensation as members of Congress. By an 
Act of Congress, of the 16th of August, 1856, the compensation 
of a member of Congress is three thousand dollars a yeai", exclu- 
sive of mileage allowed by the former Act ; deduction to be made 
for his voluntary absence, except in case of sickness of himself or 
a member of his family. 

Interest in public contracts. 

Yl. By an Act of Congress it is provided that no member of 
Congress shall hold or enjoy any contract or agreement made in 
behalf of the United States, the violation of the Act to be a high 
misdemeanor, and the contract to be void; and a penalty is imposed 
upon any officer making such contract with a member of Congress. 

It has been a rule of the House of Representatives that no 
member shall vote on any question in the event of which he is 
immediately and particularly interested. 

TIME OF MEETING OF CONGRESS, AND ITS ADJOURNMENTS. 

t2. Congress is required, by the Constitution, to meet at least 
once every year. 

" The Congress shall assemble at least once in every year, and 
such meeting shall be on the first Monday in December, unless 
they shall, bylaw, appoint a different day." Cons, of U. S., 
Art. I., Sect. IV., 2. 

73. The President of the United States has power to convene 
Congress, at any other time. 

" The President may, on extraordinary occasions, convene both 
Houses of Congress, or either of them." Cons, of U. S , Art. 
II., Sect. III. 

74. The first session of a new Congress cannot be held, nor its 
action commence, until the day fixed by the Constitution or ap- 
pointed by law, unless the President, in the exercise of his consti- 
tutional power, sooner convene it, on some extraordinary occasion. 
Aftea* being thus assembled, Congress may hold sessions, at any 



80 CONGRESS OF THE UNITED STATES. [PART I. 

time, within its term, on its ovra adjournment, by the joint resolu- 
tion of both Houses. 

It is provided by Act of Congress that when, on account of the 
prevalence of a contagious disease, or for other causes, it would 
be dangerous to the health of the members to meet at the place to 
which Congress shall stand adjourned, the President may, by 
proclamation, convene Congress at such place as he may deem 
proper. 

The Constitution does not determine at what place Congress 
shall meet. By Act of Congress, the seat of government was fixed 
in the District of Columbia, and it was provided that buildings 
should be erected there for the accommodation of Congress. 

Adjournment of Congress. 

75. Congress may adjourn, by the joint resolution of both 
Houses, at any time. The assent of the President to their 
adjournment is not requisite. 

It may thus adjourn to any time not beyond the day of their 
annual meeting as fixed by the Constitution. 

76. As to the power of either House to adjourn separately ; 
"Neither House, during the session of Congress, shall, without 

the consent of the other, adjourn for more than three days, nor to 
any other place than that in which the two Houses shall be 
sitting." Cons, of U. S , Art. I., Sect. V., 4. 

The President of the United States may adjourn Congress, in 
certain cases. 

"In case of disagreement between the two Houses with respect 
to the time of adjournment, the President may adjourn them to 
such time as he shall think proper." Cons, of U. S , Art. II , 
Sect. III. 

The President cannot adjourn Congress to any period beyond 
the usual time of its meeting. 

SEPAEATE DUTIES AND POWERS OF EACH HOUSE, 

As to the election mid qualifications of its members. 

77. Each House has, by the Constitution, the right to deter- 
mine and judge as to the election and qualifications of its own 
members. 

' ' Each House shall be the judge of the election, returns, and 
qualifications of its own members." Cons, of U. S , Art. I, 
Sect. Y , 1. ' 

It is implied by this provision that each House shall only be the 
judge whether the election of any person as a member thereof has 
been made and returned conformably to the law, and whether he 
possesses the qualifications required by the Constitution. 



CHAP, in.] CONGRE.SS OF THE UMTED STATES. 81 

18. Gontesied elections, or questions as to the right to seats 
as members, are thus determined, exclusively of any other juris- 
diction or power. 

There is an Act of Congress determining the mode of proceed- 
ing in order to contest the election of a member of the House of 
Representatives, and providing for the taking of testimony in the 
case. 

Quorum. 

79. The number of either House which shall constitute a 
quorum, or a sufficient number to do business, is fixed by the 
Constitution. 

"A majority of each House shall constitute a quorum to do 
business ; but a smaller number may adjourn from day to day, and 
may be authorized to compel the attendance of absent members, 
in such manner, and under such penalties, as each House may 
provide." Cons of U. S. Art. I. Sect. V. 1. 

This power is given to a minority of each House, in order that 
a portion of the members may not prevent the regular action of 
Congress, or suspend its legislation. 

80. Where, on the attendance of a quorum, either House has 
been organized, at a particular sitting, questions before it on all 
bills, resolutions or orders are, in general, determined by a majority 
of the members present. A bill, resolution or order, is said to 
have been passed by the House, when on the question being finally 
taken, according to the rules of the House, a majority of the 
members present had voted in favor of it. It may be so passed in 
any case, except when the assent of a greater number is required 
by the Constitution or the rules of the House. With respect to 
some matters, the concurrence or approbation of two-thirds is by 
the Constitution made necessary to the action of the House, or to 
the passage of a bill or resolution, (w) 

Election of officers. 

81. In general, the Constitution secures to each House the 
right to elect its own officers. 

83. The Vice President of the United States is President of the 
Senate, by virtue of his office ; as to all other officers, each House 
elects or appoints its own officers. 

" The House of Representatives shall choose their Speaker and 
other officers," Cons, of U. S. Art. I. Sect. II. 5. 

' ' The Senate shall choose their other officers, and also a Presi- 

(to) Cons, of U. S. Art. I. sect. III. (J ; sect. V. 2 : sect. VII. 2, 3 ; Art. 
II. sect. II. 2 ; Art. V. 



82 CONGRESS OF THE UNITED STATES. [PARTI. 

dent j9ro tempore, in the absence of the Vice President, or when 
he shall exercise the office of President of the United States. ' ' 
Cons, of U. S. Art. I. Sect. III. 6. 

83. When the Senate is sitting for the purpose of trying an 
impeachment against the President of the United States, the Chief 
Justice presides. Cons, of U. S. Art. I. Sect. III. 6. 

84. The usual officers of the Houses of Congress are a President 
of the Senate, a Speaker of the House of Representatives, and a 
Secretary or Clerk, a Sergeant-at-arms, and a Door-keeper, with 
their assistants, of each House. 

85. A sergeant-at-arms is the executive and ministerial officer 
of either House, authorized to enforce its orders, serve its process, 
and perform various duties assigned to him by the rules of pro- 
ceeding. 

The election of these officers, and their powers and duties, are 
referred to more particularly above, under the heads of " Senate" 
and ' ' House of Representatives. ' ' 

Rules of 2^^oceeding, 

86. "Each House may determine the rules of its proceeding. " 
Cons, of U. S. Art. I. Sect. Y. 2.(y) 

It is implied that these rules shall be consistent with the pro- 
visions of the federal Constitution. 

A system of rules is adopted by each House at the commence- 
ment of every Congress, to be in force during its continuance ; 
though they may be altered or repealed by the House at any time. 

By a rule of the House of Representatives, no member is allowed 
to vote on any question in the event of which he is immediately and 
particularly interested, (x) 

8t. Does each House sit ivith oi^en doors ? 

There is no express provision in the Constitution of the United 
States on the subject. G-enerally the proceedings and debates in 
each House are conducted in public ; but either House may, upon 
tiny occasion, determine to sit with closed doors ; as it is the prac- 
tice to do, in either House, when acting on matters requiring se- 
crecy, and in the Senate, when deliberating on treaties, nominations 
to office by the President, and executive business. 

Journal. 

" Each House shall keep a journal of its proceedings, and, from 
time to time, publish the same, except such parts as may in their 
judgment require secrecy." Cons, of U. S. Art. I. Sect. Y. 3. 

The journal of each House is drawn up by its Secretaiy or Clerk, 

(y) As to tlie metliod of enacting laws, see fiirtlier on, Chap. iii. 
{x) See in this chapter § 71. 



CU. III.] CONGRESS OF THE UNITED STATES. 83 

under the supervision of its presiding officer, and subject to correc- 
tion by the House. 

The records of the proceedings of the Senate, in executive ses- 
sion, and when acting with closed doors, are accessible only to the 
President of the United States and to the officers and members of 
the Senate ; and no extract from the records can be otherwise fur- 
nished, except by the special order of the Senate. 

The journals of both Houses of Congress, except those portions 
of them which relate to the executive business of the Senate, or to 
proceedings ■wich closed doors, and not directed to be made public, 
have been regularly printed and published. It is generally ordered 
by each House that a printed copy of its journal be furnished to 
the Executive and each branch of the Legislature of every State. 
For some years, the debates in each House have been reported and 
published by order of Congress at the public expense. 

Yeas and nays. 

89. "The yeas and nays of the members of either House on 
any question shall, at the desire of one-fifth of those present, be 
entered on the journal. " Cons, of U. S. Art. I. Sect. V. 3. 

90. The yeas and nays are the votes of the members severally ; 
the vote of each member with his name to be recorded on the jour- 
nal of the -House. 

A member of Congress, in either House, can only vote in person, 
and not by proxy. 

Punishment of viembers. 

91. " Each House may punish its members for disorderly be- 
haviour." Cons, of U. S. Art. I. Sect. V. 2. 

See the head " Contempt," below. 

Expulsion of members. 

92. There is a provision in the federal Constitution as to the 
expulsion of members of Congress. ' 

"Each House may, with the concurrence of two-thirds, expel a 
member." Aii. I. Sect. V. 2. 

Contempt of either House of Congress. 

93. Each House of Congress has power to punish for contempt. 
There is no power expressly given to either House of Congress 

to punish for contempts, except when committed by their own 
members ; but each House has the implied power, as necessary for 
the performance of its duties, to imprison for contempt persons not 
members. The power to punish extends no further than to arrest 



84 CONGRESS or THE UNITED STATES. [PAUT I, 

and imprisonment, and that can continue no longer than the power 
which imprisons. The imprisonment will terminate with the ad- 
journment or dissolution of Congress. 

Adjoin^nment. 

94. The federal Constitution contains certain provisions as to 
the power of either House to adjourn separately. 

" Neither House, during the session of Congress, shall, without 
the consent of the other, adjourn for more than three day-s, nor to 
any other place than that in which the two Houses shall be sitting. " 
Cons, of U. S. Art I. Sect. Y. 4. 

A smaller number than a majority of each House may adjourn 
from day to day. Cons, of U. S. Art. I. Sect. Y. 1. 

LAWS FOR RAISING REVENUE. 

95. A special power, in respect to the raising of revenue, is 
vested, by the federal Constitution, expressly and exclusively in the 
House of Representatives. 

' ' All bills for raising revenue must originate in the House of 
Representatives ; but the Senate may propose or concur with 
amendments, as in other cases." Cons, of U. S. Art. I. Sec. 
VII. 1. 

This is the only instance in which legislative power is vested in 
one House of Congress and not in the other. 

It is generally considered that this clause refers to those bills 
only by which taxes are levied, and revenue is directly raised, and 
not to such bills as may merely have the incidental effect of in- 
creasing the revenue, 

OP THE DUTIES AND POWERS OP CONGRESS. 

96. The powers of Congress are limited. 

Congress has no other powers than those expressly granted in^ 
the federal Constitution, and such as are incidental thereto. 

9t. There is a general limitation, in the federal Constitution, 
of the powers of Congress. 

' ' The powers not delegated to the United States in this Consti- 
tution, nor prohibited by it to the States, are reserved to the States 
respectively, or to the people." Cons, of U. S. Amendment's, 
Art. X. 

The terms of the Constitution making Congress a legislative 
body, and vesting in it only the "powers therein granted," imply 
that no others can be exercised by it. 

"All legislative powers, herein granted, shall be vested in a 
Congress of the United States, which shall consist of a Senate 
and House of Representatives." Cons, of U. S. Art. I. Sect. I. 



CH. III. J CONGRESS OF THE UNITED STATES. 85 

The express grant of power to Congress in certain enumerateil 
i-ases implies that its powers are limited. 

"The Constitution declares that the powers of Congress shall 
extend to certain enumerated cases. The specification of particu- 
lars evidently excludes all pretensions to a general legislative 
authority ; because an affirmative grant of special powers would 
be absurd, as well as useless, if a general authority were 
intended." (z) 

98. There are certain powers which are expressly, by the fede- 
ral Constitution, prohibited to Congress. The subject of these 
prohibitions is treated of in a subsequent chapter of this work, (a) 

99. Congress cannot exercise a power contrary to any provi- 
sion of the federal Constitution. 

100. The authority of Congress in the exercise of those powers 
which are vested in it by the federal Constitution is full and 
complete. 

Evei'y power vested by Congress in the Constitution is complete 
in itself, and may be exercised to its utmost extent, without any 
limitations except such as are prescribed by the Constitution. 
The authority of Congress, though limited to specific objects, is 
full and absolute in regard to those objects, under the Constitution. 

Division of the powers of Congress. 

101. The powers of Congress may be divided into those that 
are enumerated or express, and those that are incidental. They 
are also called either direct or implied, (b) 

102. The incidental powers of Congress are those which are 
necessary to the powers expressly granted, by the federal Constitu- 
tion, to Congress. 

The incidental powers are to be considered as included in the 
express powers, and equally delegated with them, by the Constitu- 
tion, to Congress or the general government. All the powers of 
the government are, in a proper sense, enumerated powers. 

103. There is a provision in the federal Constitution which 
recognizes, and applies to, the incidental powers of Congress. 

' ' The Congress shall have power to make all laws which shall 
be necessary and proper for carrying into execution the foregoing 
powers, and all other powers vested by this Constitution in the 
government of the United States, or in any department or officer 
thereof." Cons of U. S. Art. I. Sect. VIII. 18. 

104. The import of this clause is, that Congress shall have all 
the incidental and instrumental powers necessary and proper to 
carry into execution all the express powers. 

(t'; Story on the Cons. p. 434. (a) See Part I. chap, IV. 
Cb) See Part I. chap. L 
8 



86 CONGRESS or THE UNITED STATES. [PART I. 

The term "necessary " here is not to be considered as equiva- 
lent to the terms "absolutely and indispensably necessary ; '' 
and as excluding all means for carrying into eflfect an enumerated 
power, except such as without which the grant of the power would 
be nugatory ; but to mean the same as needful, requisite, essen- 
tial, conducive to. 

Whenever a question arises concerning the constitutionality of a 
particular power, the first question is, whether the power be 
"expressed " in the Constitution. If it be, the question is decided. 
If it be not expressed, the next inquiry must he, whether it is 
properly an incident to an express power, and necessary to its 
execution. If it be, then it may be exercised by Congress. If 
not, Congress cannot exercise it. 

With respect to any proposed measure, ' ' let the end be within 
the scope of the Constitution ; and all means which are appropri- 
ate, which ai'e plainly adapted to the end, and which are not pro- 
hibited, but which are consistent with the letter and spuit of the 
instrument, are constitutional. ' ' (c) 

" There is not in the whole of the federal Constitution a grant 
of powers, which does not draw after it others, not expressed, but 
vital to their exercise ; not substantive and independent, indeed, 
but auxiliary and subordinate. There is no phrase in it which, as 
the Articles of Confederation did, excludes incidental and implied 
powers, and which requires that every thing granted shall be ex- 
pressly and minutely described. Even the tenth Amendment, 
which was framed for the purpose of quieting the excessive jealou- 
sies which had been excited, omits the word ' expressly, ' (which 
had been contained in the aiticles of Confederation,) and declares 
only that ' the powers not delegated to the United States, nor 
prohibited by it to the States, are reserved to the States respect- 
ively, or to the people ; ' thus leaving the question, whether a par^ 
ticular power, which may become the subject of contest, has been 
delegated to the general government, or prohibited to the States, 
to depend upon a fair construction of the whole instrument. 

" The nature of a Constitution requires, that only its great out- 
lines should be marked, its important objects designated, and the 
minor ingredients, which compose those objects, be deduced from 
the nature of those objects themselves. That this idea was enter- 
tained by the framers of the American Constitution, is to be infer- 
red not only from the nature of the instrument, but from its lan- 
guage. Why, else, were some of the limitations, found in the 
ninth section'of the first article, introduced ? It is, also, in some 
degree, warranted, by their having omitted to use any restrictive 

(c) 2 Story ooi the Cons. pp. 113. 118. 123. 



CH. ni.J CONGRESS OF THE UNITED STATES. 81 

term, which might in-eveut its receiving a fair and just interpre- 
tation." (d) 

The power granted to Congress by this clause of the Constitu- 
tion, (Art. I. Sect. VIII. 18,) is a direct and express power, to 
carry into effect the powers conferred upon it, and enumerated in 
the Constitution ; to execute the laws it was authorized to pass. 
It is to be construed a power of execution. It was not intended 
by the provision to extend the powers of Congress to any subject 
matter not enumerated in the Constitution. 

105. These incidental, implied powers are derived from th;; 
meaning of the Constitution, ascertained by its express words, or 
their necessary implication ; taking the whole together. They are 
not properly constructive powers, so called, taken from a mere 
construction of the Constitution; such "an enlarged construction 
as would extend its words beyond their nat-ural and obvious im- 
port, ' ' or to be formed from matter extraneous. 

106. By Art. IV. sect. III. 2, of the federal Constitution, it 
is provided ; " Congress shall have power to dispose of and make 
all needful rules and regulations respecting the territory, or other 
property, belonging to the United States ; and nothing in this 
Constitution shall be so construed as to prejudice any claim of tlie 
United States or of any particular State." An eminent jurist 
and writer has stated his opinion to be, that this latter clause has 
a most important bearing upon the interpretation of the Constitu- 
tion in general ; referring to all the jjowers and property of the 
United States, under the Constitution, and to the powers reserved 
to the States severally ; and that the declaration, ' ' nothing con- 
tained in this Constitution shall be construed, &c.," prohibits any 
interpretation of the Constitution by which it shall operate to the 
prejudice of the general government, or of any particular State, 
by construction, (e) 

lOY. There are what are called resulting powers ; a class of 
implied or incidental powers, arising from the aggregate powers 
of the general government. 

As instances, the United States as a sovereignty is entitled to 
sue ; so, in their political capacity, they have a right to enter into 
a contract ; though there is no express provision therefor in the 
federal Constitution ; for these are natural incidents resulting from 
the sovereignty and character of the national government, so far 
as they are appropriate to any of the ends of government, and 
within the range of its powers. 

108. The powers conferred, by the Constitution, on the Con- 
gress or the general government, may be either exclusive or 
concurrent. {/) ' 

(d) 1 Story ou the Cons. p. 418. (e) Baldwin's Cons. "Views, pp. 102-4. 
(f) See Part I. chap. I. 



8S CONGRESS OF THE UNITED STATES, [PART I. 

109. The mere grant in the federal Constitution of a power to 
the general government, or to Congress, does not imply that it is 
to be exclusive, and that it is prohibited to the States to exercise 
the same power. 

The same power exists concurrently in the several States, un- 
less when the federal Constitution has expressly in terms given an 
exclusive power to Congress, or the general government, or the 
exercise of a like power is prohibited to the States severally, or 
there is a direct repugnancy and incompatibility in the exercise of 
it by the States severally. 

110. When Congress, in the exercise of a power existing in it 
concurrently with the States, passes a law, any State law contrary 
to it is invalid. 

The law of Congress, in such a case, is paramount, and the 
State law unconstitutional and void, so far as its provisions are 
different therefrom. 

111. In the case of a concurrent power, in Congress, the 
several States may legislate on the subject, in the absence of any 
law of Congress thereon. 

112. If Congress exercises a power which exists in it concur- 
rently with the several States, a State cannot legislate on the 
subject, in a case where, from the nature of *the subject, such 
legislation must be inconsistent with the discretionary exercise of 
the povv'er by Congress. 

113. The several States do not possess a power concurrently 
with Congress, or the general government, in every case where it 
is granted to Congress or the general government, but is not given 
in terms exclusively to Congress, or the general government, or 
prohibited expressly to the several States. A power given to 
Congress, or the general government, may be, from its nature, 
such that it must be exclusive. 

114. The powers of Congress relate, in general, to subjects of 
a national nature, (g) 

ENU3IERATED POWERS OE CONGRESS. 

115. The enumerated powers of Congress expressly specified 
in the Constitution, maybe properly considered under the particular 
heads of the subjects to which they relate. 

Revenue. Taxes. 

116. The power of Congress as to raising revenue, or laying 
taxes, is defined by the Constitution. 

" The, Congress shall have power — to lay and collect taxes, 
duties, imposts and excises, to pay the debts, and to provide for 
the common defence and general welfare of the IJnited States ; but 

{g) See alDOve, chap. I. par. 29. 



OH. III.] C'ONGRESS OF THE UNITED STATES. 89 

all duties, imposts and excises shall be uniform throughout the 
United States. Cons, of U. S. Art. I. Sect. Till. 1. 

IIT. The words "to pay the debts, and to provide for the 
common defence, and general welfare," do not constitute a distinct 
and substantial power. They are connected with the preceding 
words in the clause, so as to constitute a qualification of them. 

The power of taxation only is given by the clause, and it is 
limited to objects of a national character, ' ' for the common defence 
and general welfare. "(7i) 

118. As to the meaning of the terms " imposts and excises ;" 
taxes include every species of what is levied by government ; duties 
are laid upon any kind of commodities generally ; "imposts" upon 
imported articles ; and " excises" upon the manufacture, retail or 
consumption of goods. 

119. Taxes may, in general, be divided into di?'ect and indirect 
taxes. 

Direct taxes are those which are laid directly upon the persons 
or property of individuals. And it has been adjudged, that under 
the Constitution of the United States, du-ect taxes wei-e only of two 
species — a tax upon the person, which is called a capitation tax 
or poll tax, and a tax upon land. Consequently, all taxes not 
levied upon the person or land are to be treated as indirect taxes. 

120. Direct taxes must be apportioned among the several States 
according to the numbers of their inhabitants respectively. 

" No capitation, or other direct tax shall be laid, unless in pro- 
portion to the census or enumeration, hereinbefore directed to be 
taken." Cons, of U.S. Art. I. Sect. IX- 4. 

' ' Representatives and direct taxes shall be apportioned among 
the several States, which may be included within this Union, ac- 
cording to their respective numbers, which shall be determined by 
adding to the whole number of free persons, including those bound 
to service for a term of years, and excluding Indians not taxed, 
three-fifths of all other persons. Co7is. of U. S. Art. I. Sect. II. 3. 

The computation of numbers, on which is founded the apportion- 
ment of direct taxes, is, of course, according to what is called the 
federal method, in reference to the operation of which some ob- 
servations have been here previously made. (^) 

121. As to the laying of indirect taxes, it is provided by the 
Constitution, that ' ' they shall be uniform throughout the United 
States. Cons, of U. S., Art. I. Sect. YIII. 1. 

122. Duties on articles imported from foreign countries, called 
customs, or imposts, are laid and collected in the following man- 
ner in general. By Acts of Congress certain cities or towns are 
made places oi" ports of entrij, and custom ]\ouses established 

(h) 2 Story on the Con.,., ii. oJ7. (0See44abo\'e, in this chapter. 

8* 



90 COXGEESS OF THE U>TTED STATES. [PART I. 

thereat, for wMch collectors and other officers are appointed. At 
some of these places, all vessels from other countries, and with 
foreign goods, are obliged to enter, and to hare their cargoes un- 
laden ; and from some of these places all vessels destined for a 
foreign port must obtain a clearance. All ships and vessels engaged 
in foreign commerce, or the coasting trade, that belong to citizens 
of the TTnited States, are named, measured as to tonnage, and re- 
gistered or enrolled in the custom houses. These vessels always 
cany with them papers, signed by the proper officers of the United 
States, showing what they are, to what port they belong, and whose 
property they are. VThen they depart from a port, they must have 
a certificate of clearance fi'om the proper custom house ; and when 
they return to any port of the United States, from a foreign coun- 
try, the master of the vessel must make a statement in writing, on 
oath, of all the property laden on board his vessel. Foreign goods 
thus imported are liable to pay the duties, imposts or customs, im- 
posed by the Acts of Congress. The captain's statement is called 
a manifest ; and contains the names of the persons that send the 
goods, who are called consignors, and the names of the persons to 
whom they are sent, who are called consignees. The consignees 
appear at the custom-house, and claim the goods consigned to 
them ; make a list of them, and swear to its being conformable to 
the manifest, and to the loading of the vessel ; which is called an 
entry. The amount of the duties on the goods in the vessel being 
ascertained, the consignees give bonds therefor, with sm'eties to the 
United States. When these bonds are given at the custom-house, 
the proper officer gives to the consignee a written pe?'mzY to receive 
the goods fi'om the vessel, mider the inspection of an officer, whose 
duty it is to see that the goods agree with the permit. The same 
course is pursued in case of a vessel belonging to citizens of other 
countries, amving here with foreign goods. Tiolations of the laws 
on this subject subject the vessel and its loading to condemnation 
and forfeiture, and are otherwise severely punished on trial, in the 
courts of the United States. There is a number of officers and 
agents at the custom-houses required for the enforcement of the 
revenue laws, and receiving and accounting for the duties collected ; 
who are appointed by the President of the United States, or Se- 
cretary of the Treasury. These laws are carried into eflPect under 
the direction of the Secretary of the Treasury through his depart- 
ment See Chap. YIII, head Treasury Department. 

Smuggling, or bringing foreign goods into the country secretly 
and in violation of the revenue laws, for the purpose of avoiding 
the payment of the duties thereon, is punished with forfeiture of 
goods, fine and imprisonment. 

There are some remarks applicable to this subject under the head 
which treats of the power of Congress to regulate commerce. 



1 



CH. m.] CONGRESS OF Tlli: UNITED STATES. 91 

123. A direct tax may be laid \)y Cong-ress upon property iu u 
District or Territory not represented in Congress. The power i3 
co-extensive witli the territory of the United States. 

It has been decided by the Supreme Court of the United States, 
that Congress, in laying a direct tax upon the several States, was 
not constitutionally Ijound to extend such tax to the district or ter- 
ritories of the United States ; but that it was a matter of discretion. 
»Vhen, however, a direct tax is to be laid on the district or territo- 
ries, it can be laid only by the rule of apportionment, (jj) 

124. Congress has, under this power, claimed and exercised 
authority to lay duties for the purpose of encouraging and protect- 
ing articles of domestic manufacture, or produce, as well as for 
raising revenue on imports. 

And such power has been claimed, also, under the ]>ower of 
Congress, " to regulate commerce with foreign nations. " The lay- 
ing by Congress of duties upon goods imported, is called a "tariff. " 

125 Has Congress authority to establish a national bank ? 

It is claimed, that Congress has such a power as incidental to 
the enumerated powers to raise money, to regulate commerce, to 
coin money and regulate the value thereof, and to provide for the 
common defence and general welfare. 

126. All bills for raising revenue must originate in the House 
of Representatives ; but the Senate may propose or concur with 
amendments, as in other bills. Cons, of U. S. Art. I. Sect. YII. 1. 

127. There is a prohibition in the federal Constitution as to 
Congress laying taxes or duties on exports. 

' ' No tax or duty shall be laid upon articles exported from any 
State. No preference shall be given, by any regulation of com- 
merce or revenue, to the ports of one State over those of another; 
nor shall any vessels bound to or from one State be obliged to 
enter, clear, or pay duties in another." Cons, of U. S. Art. I. 
Sect. IX. 5, 6. 

128. There is a prohibition iu the federal Constitution as to 
the several States laying taxes or duties on imports or exports. 

"No State shall, without the consent of Congress, lay any 
imposts or duties upon imports or exports, except what may be 
absolutely necessary for executing its inspection laws ; and the 
nett produce of all duties laid by any State on imports and exports 
shall be for the use of the treasury of the United States ; and all 
such laws shall be subject to the revision or control of Congress. 
No State shall, without the consent of Congress, lay any tonnage 
duty." Cons, of U. S. Art. I. Sect. X. 2. 

129. The power of Congress to lay and collect taxes, &c., is 
not exclusive. 

(jj) 2 Sto. Com. p. 412. 



92 CONGRESS OF THE UNITED STATES. [PART I. 

It is a power which the States may exercise, except as to duties 
on imports and exports, concurrently with Congress. 

"The language of the Constitution does not, in terms, make it 
an exclusive power in Congress ; the existence of a concurrent 
power is not incompatible with it by Congress ; and the States are 
not expressly prohibited from using it by the Constitution. A 
concurrent power, therefore, remains in the States as a part of 
their original and unsurrendered sovereignty. ' ' {k) 

It has been decided that a law of a State, laying a tax on the 
Bank of the United States, was unconstitutional. 

It has been held, also, by the Supreme Court of the United 
States, that a State had not constitutional authority to tax stock 
issued for loans to the United States. ISTo State can have autho- 
rity to tax an instrument of the United States. 

130. The federal Constitution directs in what manner only 
money can be dra-rni from the treasury of the United States. 

"N'o money shall be drawn from the treasury, but in conse- 
quence of appropriations made by law." Cons, of U. S. Art. I. 
Sect. IX. 1. 

131. The provision of the federal Constitution as to the 
account of the public money is : 

"A regular statement and account of the receipts and expendi- 
ttires of all public monies shall be published, from time to time. ' ' 
Art. I. Sect. IX. 1. 

Power to borrow vioney. 

132. As to the power of Congress to borrow money ; 

" Congress shall have power to borrow money on the credit of 
the United States." Cons, of U. S. Art. I. Sect. YIII. 2. 

Power to regulate commerce. 

133. As to the power of Congress to regulate commerce : 

" Congress shall have power to regulate commerce with foreign 
nations, and among the several States, and with the Indian 
tribes." Cons, of U. S. Art. I. Sect. VIII. 3. 

134. The term "commerce" here includes navigation and 
intercourse generally. 

135. Commerce with foreign countries may be regulated by 
treaties, made by the President and Senate of the United States. 

"From the nature of this power, in Congress, it must be 
exclusive. ' ' 

"The general power of Congress to regulate commerce is not 
restricted to the mere buying and selling, or exchanging, of mer- 
chandize and commodities, but includes navigation, as well as 

(k) 2 Story's Comm. p. 412. 



TH. T T.] CONGRESS OF THE UNITED STATES. 93 

commercial intercourse in all its branches, and extends to all 
vessels by whatsoever force propelled, and to whatsoever purposes 
applied." 

Under this power Acts of Congress have been passed prescribing- 
the requisites to constitute "American vessels," or requiring them 
to be navigated by "American seamen," or to conform to other 
regulations. 

' ' The power to regulate commerce, thus understood, extends to 
every species of commercial intercourse between the United States 
and foreign nations, and amongst the States of the Union, and the 
Indian tribes." 

The Supreme Court of the United States has decided that, under 
this provision, Congi'ess cannot interfere with the slave trade be- 
tween the States. The decision was on the ground that in the 
Constitution slaves are treated as persons, and not as property ; 
they not being, therefore, the subjects of commerce. * 

Commerce loith foreign nations. 

' ' The commerce of the United States with foreign nations, is 
the commerce of the whole Union ; and each State and district 
has a right to participate in it by means of the navigable streams 
which penetrate the country in all directions, and pass through 
the interior of almost every State in the Union." 

The power of Congress to regulate foreign commerce, must be 
exercised wherever it exists ; and as a foreign voyage may com- 
mence and terminate at a port within the same State, this power 
of Congress may be exercised within a State. 

"The power of Congress, then, comprehends navigation within 
every State in the Union, so far as that navigation may be in any 
liianner connected with "commerce with foreign nations, or among- 
fhe several States, or with the Indian tribes." 

"As the power of regulating commei'ce reaches the interior of 
a State, and may be there exercised. Congress has a right not 
only to authorize importations, but to authorize the importer to 
sell. 

"An Act of a State Legislature, requiring wholesale importers 
and sellers of foreign goods to obtain a license from the State, 
and to pay a sum of money for the privilege of selling, was conse- 
quently held to be void, as repugnant not only to that provision 
of the Constitution which restricts a State from laying duties on 
imports, but to that which invests Congress with the power "to 
regulate commerce." 

' ' The power to regulate foreign commerce extends to the regu- 

* Grove vs. Slaughter, 15 Peters' Rep. p. 508. 



94 COXGHESS CF THi: rXTTED STATES. [PAKT I. 

lation and government of seamen on board of merchant sMps be- 
longing to citizens of tbe United States ; to conferring privileges 
upon ships owned and built in the United States ; to quarantine, 
pilotage, and embargo laws ; to wrecks of the seas ; the construc- 
tion of light -houses ; the placing of buoys and beacons ; the 
removal of obstructions to navigation in creeks, rivers, sounds and 
bays ; to the establishment of securities to navigation against 
inroads of the ocean ; and to the designation of particular ports 
of entn- and delivery for the purposes of foreign commerce. 

"The regulation of commerce has also been employed for the 
purposes of revenue ; of prohibition, retaliation, and commercial 
reciprocity : to encourage domestic navigation ; and to promote 
the shipping and mercantile interests by bounties, discriminating 
duties, and special preferences ; and sometimes to regulate inter 
course with a view to mere political objects." Duer's Constitu 
tional Jurisjjrudence, pp. 142-5. 

The law of a State granting an exclusive privilege of steam 
navigation upon waters wholly in the State, but which are naviga- 
ble from the ocean, was held by the Supreme Court of the United 
States to be void, as repugnant to the federal Constitution, so far 
as such privilege interfered with a similar privilege derived from 
Acts of Congress. 

The power of prohibiting the importation of slaves into the 
United States, after the year 1808, is included in the power to 
regulate commerce ; as the restriction which postponed its exercise 
arose ft'om an express exception in the grant of the general power. 
By Acts of Congress the slave trade, in importing slaves fi'om 
foreign countries, by citizens of the United States, is declared 
to be piracy, and punishable with death. 

It has been judicially decided that an Act of Congress laying 
an embargo upon all vessels in our ports, and prohibiting all 
manner of exportation, was constitutional. Under the power to 
regulate commerce. Congress may thus totally interdict it. 

Laying an embargo is the prohibition, by a government, of 
vessels fi-om leaving or entering certain ports for a specified time. 

Commerce among the several States. 

136. The "power to regulate commerce among the several 
States," does not extend to that commerce which is completely 
internal ; and comprehensive as are the terms in wMch it is con- 
ferred, it is, nevertheless, restricted to that commerce which con- 
cerns more States than one. 

"For the genius and character of the government evince that its 
action is to be applied to all the external concerns of the nation, 
and to the internal concerns which affect the States generally; but 
not to those which are completely within a State, which do not 



CH. in.] CONGRESS OF THE UNITED STATES. 95 

affect other States, and with which it is not necessary to interfere 
for the purpose of executing any of the general powers of the na- 
tional government. 

" The completely internal commerce of a State is therefore re- 
served for the State itself; but, as the power of Congress to regu- 
late foreign commerce does not stop at the jurisdictional lines of 
the States, so the power to regulate commerce amongst the States 
is not limited by State boundaries. 

' ' For not only do waters communicating with the ocean pene- 
trate into the interior, and pass in their course through the several 
States ; but in many cases there are waters in and upon the bounda- 
ries of several of the States, which, though not navigable to the 
sea, afford means of commercial intercourse between those States, 
and furnish occasion to Congress for the exercise of the power in 
question. 

" This power may be exercised wherever the subject exists; and 
if the means of commercial intercourse exist within a State ; if, for 
instance, a coasting voyage may commence or terminate within a 
State, then the power of Congress to regulate commerce amongst 
the States, may be exercised within a State. 

" Commerce amongst the States must necessarily be within the 
States ; and in the regulation of the Indian trade, the action of the 
law is chiefly within individual States ; whilst in this case, as well 
as with respect to commerce amongst the States, the powder of Con- 
gress being co-extensive mth the subject on which it acts, cannot 
be stopped at the internal boundary of the State, but must enter 
its limits, and be exercised within its territorial jurisdiction. 

" The power of Congress to regulate commerce amongst the 
States, extends to regulating navigation, and to the coasting trade 
and fisheries, within as well as without any State, wherever they 
are -connected with the commercial intercourse with any other State, 
or with foreign nations. 

' * It extends also to the regulation and government of seamen ; 
to conferring privileges upon vessels engaged in the coasting trade ; 
and to the n^igation of vessels engaged solely in carrying passen- 
gers, as well as of those engaged in traffic, whether propelled by 
steam or otherwise. 

' ' The principles upon which a State law, requiring importers 
and venders of foreign goods to obtain a license from the State 
government, was declared to be repugnant to the Constitution of 
the United States, were held to apply to a similar interference with 
importations from one State to another. 

' ' Although the power of a State to regulate its purely internal 
commerce, and establish its own police to control and promote that 
trade, and to guard the health and safety of its citizens, are un- 
doubted ; yet neither these nor any other acknowledged State 



96 CONGRESS OF THE UMTED STATES. [PART I, 

powers can, consistently with the federal Constitution, be so used 
as to obstruct or defeat the power of Congress to regulate commerce 
amongst the States, 

Nevertheless, if measures within the powers of State legislation 
do not come into actual collision with the powers of the general 
government over navigable streams within a State, the national 
courts can take no cognizance of those measures or their effects, 
where there has been no legislation of Congress with which the 
operation of the State law could interfere. 

Commerce ivifh the Indians. 

IST. The power of Congress to regulate commerce with the 
Indian tribes is to be construed in the same manner ; and it extends 
equally to tribes living within, or without the territorial limits of the 
United States ; and the trade with them, in all its forms, is subject 
exclusively to the regulation of Congress. 

" The Indian territory within the United States composes apart 
of the Union ; and in the intercourse between the general govern- 
ment and foreign nations, in commercial regulations, and in any 
attempt at intercourse between foreign nations and the Indian in- 
habitants, they are considered as within the jurisdictional limits of 
the United States, and subject to many of the restraints which are 
imposed by the latter on their own citizens. 

' ' The tribes residing within the acknowledged boundaries of the 
Union, are not deemed foreign nations, within the meaning of the 
Constitution, but are considered as domestic dependant nations, 
occupying a territory to which the United States asserts a title, 
which must take effect when the right of occupancy of the Indian 
ceases ; and in the mean time they are in a state of pupilage to the 
general government. 

" They are distinguished in the Constitution by an appropriate 
name fi'om foreign nations, as well as from the several States com- 
posing the Union ; and the objects to which the power of regulating 
commerce may be directed, are divided into several classes accord- 
ing to that distinction. 

' ' The relation in which the Indians stand to the country involves 
practically no claim on their lands, and no dominion over their 
persons ; but merely binds them to the general government as de- 
pendent allies, claiming the protection of a powerful friend and 
neighbour, and receiving the advantages of that protection without 
its involving a surrender of their national character. 

" Congress has from time to time passed laws to regulate trade 
and intercourse with the Indians, which treat them as nationi, 
respect their rights, and manifest a purpose to afford that protection 
to them for which treaties stipulate ; which laws, and especially 
the laws now in force, consider the several Indian Xations as dis- 



f 



CH. ni.] CONGRESS OF THE UNITED STATES. 9T 

tinct political communities, having territorial boundaries, within 
which their authority is exclusive. 

' ' The treaties and laws of the United States contemplate the 
Indian territory as completely separated from that of the States ; 
and provide that all intercourse mth them shall be carried on ex- 
clusively by the government of the Union ; whilst the powers of 
Congress to regulate commerce, to declare war, make peace, and 
conclude treaties, comprise all that is required for regulating inter- 
course with the Indians. " Duer^s Constitutional Jurisprudence, 
p. 155-161. 

Navigation laws. 

138. Acts of Congress have been passed, called our navigation 
laws, for the regulation of navigation and commerce. 

' ' The grand aim of our policy has been to encourage our own 
trade, navigation and ship building, by co^iferring peculiar privi- 
leges on ships built or captured, and wholly owned and commanded 
by American citizens. For this purpose every ship engaged in 
foreign commerce is required to be 7-egistered with the collector 
of the port to which she belongs. The registry must contain an 
accurate measurement and description of the ship, with the names 
of the builder, master and owners. A certificate of registry then 
issues ; and security is taken that it shall be used only for that ship. 
At every change of ownership or burthen, a new certificate must 
be obtained ; and upon every change of master, that fact must be 
reported to the collector, and by him endorsed on the certificate. 
Moreover, every sale or transfer must be evidenced by a wi'itten 
bill of sale, reciting the certificate at length. A failure to comply 
with these requisites always involves a forfeiture of American privi- 
leges, and sometimes of the ship itself. These privileges consist in 
discriminating duties on foreign goods in favour of our own citizens. 
If a vessel be only owoied by Americans, and not built here or ob- 
tained by capture, she is mei'ely entitled to a passport from the 
custom-house, for her protection as to national character ; but she 
cannot be registered, and must pay foreign duties. And every 
ship engaged in foreign commerce requires, besides a certificate of 
registry, various other vouchers of national character ; in relation 
to the citizenship of its officers and seamen, the revenue laws, and 
the numerous regulations for the health, protection and comfort 
of the seamen." See Part I. c. Ill, as to revenue laws. 

"In pursuance of this power of Congress, a system of regula- 
tions has, also, been provided for the vessels engaged in the com- 
merce between the States, the coasting trade and fisheries, similar 
to those provided for vessels engaged in foreign commerce. If such 
vessels be over twenty tons burthen, they must be enrolled with 
the collector of the district, who issues a certificate of enroll- 

9 



98 CONGRESS OF THE UNITED STATES. [PART L 

vient. The rules and requisites of enrollment are in all respects 
the same as registry. If under twenty tons burthen no enrollment 
is necessary. Bat in either case a license must be taken out for 
the coasting trade or fishing. Otherwise, such vessels must pay 
foreign duties, if in ballast or laden with native products ; and they 
are liable to forfeiture, if laden with foreign products. If vessels 
thus enrolled and licensed would make a foreign voyage, the en- 
rollment and license must be surrendered, and a registry taken 
out, and vice versa. These provisions for registry and enroll- 
ment, of course, include steamboats as well as other vessels. — 
It will be seen that they enable the government to determine, at 
any time, the exact amount of American shipping, as well as the 
portions of it employed respectively in foreign and domestic com- 
merce. At the same time, they enable all persons concerned to 
trace the title to ships, by referring to the custom house books. " (?. ) 
Poiver to naturalize aliens. 

139. The power of naturalizing aliens is vested, by the federal 
Constitution, in Congress. 

" Congress shall have power to establish an uniform rule of natu- 
ralization throuo-hout the United States. " Cons, of U. S. Art. 
L Sect VIII. 4. 

It is implied that Congress has the power of establishing such a 
rale, or of not legislating on the subject, at its discretion. 

This power is an exclusive one in Congress. The States sev- 
erally have no power on the subject. See Part. II. cJi. II. 

140. There is a provision of the federal Constitution as to the 
privileges and rights of citizens of each State in the several other 
States." 

" The citizens of each State shall be entitled to all the privileges 
and immunities of citizens in the several States. " Cons, of U. S. 
Art lY. Sect II. 1. 

141. Aliens are persons born out of the jurisdiction of the United 
States. Some general remarks in relation to aliens, their rights 
and privileges, are to be found in the fii'st chapter of this work, (ni) 

142. There are Acts of Congress which provide how aliens may 
be natm"alized, or become citizens of the United States. 

They may be naturalized by the courts of record of the United 
States, or of the several States, under the Acts of Congress, upon 
complying with the provisions thereof 

143. These are the requisites, in general, under the Acts of Con- 
gress, for the naturalizations of alien. 

Any alien, being a free white person, of the age of twenty-one 
years, not a native citizen, denizen or subject of a country at war 

(I) Walker's American Law, pp. 133, 134. 

(m) See. above, chapter I, head Citizens of the United States. 



CH. III.] CONGRESS OF THE UNITED STATES. 99 

with the United States, may be so naturalized, on the following 
conditions : 

I. The applicant must have declared his intention, under oath or 
affirmation, to become naturalized, before some federal or State 
court of record, or its clerk, two years l^efore his admission ; unless 
he has resided in this country since 1812 ; or unless being a minor 
he has resided therein three years before he became of the age of 
twenty-one years. II. The applicant must have resided for the 
continued term of five years, next preceding his application, within 
this country, and one year within the State where the application 
is made ; and that during that time he has behaved as a man of good 
moral character, attached to the principles of the Constitution of 
the United States, and well disposed to the good order and hap- 
piness of the same ; which must be proved to the satisfaction of 
the Court, by other testimony than the applicant's own oath. III. 
The applicant must, at the time of his application, declare on oath 
or affirmation, before the court, that he will support the Constitu- 
tion of the United States, and that he doth absolutely and entirely 
renounce and abjure all allegiance and fidelity to every foreign 
prince, potentate, state or sovereignty whatever, and particularly 
by name the prince, potentate. State and sovereignty, whereof he 
was born a citizen or subject. IV. The applicant must make in 
the court, an express renunciation of any hereditary title, or order 
of nobility, that he may have borne in the kingdom or State from 
which he came. 

144. The children of persons duly naturalized, being under the 
age of twenty-one years at the time of their parents being so natu- 
ralized, are to be considered as citizens of the United States. 

The Act of Congress confines the description of aliens capable 
of being naturalized to " free white persons." This excludes the 
Inhabitants of Africa, and their descendants. Indians cannot be 
made citizens under the Act of Congress. 

Bankruptcy. 

145. Congress has power to legislate on the subject of bank- 
ruptcy. 

" Congress has power ; — to establish uniform laws on the subject 
of bankruptcies, throughout the United States." Cons, of U. S. 
Art. I. Sect. VIII. 4. 

146. What are, in general, the objects of a bankrupt law ? 

To compel an equal distribution of the effects of a bankrupt 
among his creditors, without preference, in proportion to their 
claims, by providing that from the time of his committing an act of 
bankruptcy his power over his property shall cease, and tliat com- 
missioners shall be appointed to take possession of it, and to apply 
the proceeds thereof to the payment of his debts ; and to exempt 



J 00 CONGRESS OF THE UXITED STATES. [PART I. 

the person of a bankrupt acting honestly, from liability for his former 
debts. 

14T. There is not any Act of Congress in force now on the sub- 
ject of bankruptcies. 

The last bankrupt law by Congress was passed on the 19th day 
of August, 1841, and was repealed on the 3d of August, 1843. 

148. "What is the difference, in general, between bankrupt laws 
and insolvent laws ? 

By the bankrupt laws the debtor may be discharged from his 
debts ; but by the insolvent laws he is, usually, only discharged 
from imprisonment or liability thereto. 

149. Have the States severally a right to enact bankrupt laws ? 
Yes ; where there is no Act of Congress on the subject in force ; 

and provided that they do not violate the provision of the federal 
Constitution, ' ' that no State shall pass any law impairing the obliga- 
tion of contracts. " And a bankrupt law of a State cannot affect 
citizens of other States. 

Coining money. Currency. 

150. What is the power of Congress as to coining money ? 

" Congress shall have power — to coin money, and to regulate 
the value thereof, and of foreign coins." Cons, of TJ. S. Art. I. 
Sect. YIII. 5. 

There are Acts of CongTess declaring what shall be money of the 
United States, providing for the coining of such money, and regu- 
lating its value ; and which also detennine the value of the coins 
of foreign countries. 

There is thus coined by the general government gold, silver and 
copper money ; mints being established for that purpose in different 
places. And gold and silver are, by Act of Congress, made a legal 
tender in payment of debts. 

151. The provision of the federal Constitution as to the power 
of the several States on the subject, is : 

"Xo State shall coin money, emit bills of credit, or make any 
thing but gold and silver a tender in pavment of debts." Cons, 
of U. S. Art. I. Sect. X. 1. 

152. The power "to coin money, and to regulate the value 
thereof, and of foreign coin, " was given to Congress, and withheld 
from the several States, with the prohibition upon the several 
States not "to emit" bills of credit, or make any thing but gold 
and silver a tender in payment of debts, ' ' in order to insure a sound 
and uniform currency throughout the TTnion,(n) 

There are no direct prohibitions upon Congress not to emit bills 
of credit, nor make any thing but gold and silver a legal tender; 

(n) See Part I. Cliap. V. 



CH. m.] CONGRESS OF THE UNITED STATES. 101 

however such may be considered as existing by implication. Yet 
Congress has neither directly emitted bills of credit, nor made any 
thing but specie a legal tender. 

153. As to the punishment of counterfeiting coin, it is provided : 
' ' Congress shall have power to provide for the punishment of coun- 
terfeiting the securities of the United States. ' ' Cons, of U. S. Art. 
I. Sect. VIII. 5. 

Weights and measures. 

154. "Congress shall have power — to fix the standard of weights 
and measures." Cons, of U. S., Art. I. Sect. VIII. 5. 

Congress has exercised this power. It is directed by Act of 
Congress that a complete set of the standard weights and measures 
used at the custom houses, and for other public purposes, shall be 
delivered to the Governor of every State, or some person appointed 
therein, to be uniform standards throughout the Union. 

As to the power of the several States on the subject ; — until 
Congress shall fix a general standard of weights and measures for 
the United States, each State has the power of fixing a standard 
for itself Many of the States have by law established such stan- 
dards, for certain purposes. 

Post offices and post roads. 

155. "Congress shall have power — to establish post offices and 
post roads." Cons, of U. S., Art. I. Sect. VIII. 7. 

" This power is exclusive, so far as it relates to the conveyance 
of letters and other articles by mail ; but not in regard to post 
roads, as it would be unnecessary for Congress to make another 
road where a sufficient one for the purpose already existed ; whilst, 
on the other hand, no State has power to deny or obstruct the 
passage of the mail over its public roads. 

' ' Various provisions, in regard to post offices and the convey- 
ance of letters and other articles by mail, have been made by Con- 
gress at diiferent times, founded on the principle of the power being 
exclusive as to those objects."* 

It has been claimed, that under this power, in conjunction with 
the powers to raise money to provide for the general welfare, and 
to pass all laws necessary and proper for carrying into execution 
the powers vested in the general government, Congress has power 
to appropriate money and provide for internal improvements in 
the several States by means of roads and canals. 

It has also been claimed that Congress has the power to lay out, 
construct and improve post roads and military roads, with the as- 
sent of the States through which they pass, as well as to construct 

* Du^r's Cons. Jurisprudence, pp. 161, 162. 
9* 



102 CONGRESS OF THE UNITED STATES. [ PART I. 

canals through the several States, for promoting and securing in- 
ternal commerce, and for the more safe and economical trans- 
portation of troops and military stores in time of war ; leaving the 
right of jurisdiction over the soil to the respective States. 

Copy rights, and patent rights. 

156. The power of Congress as to patent rights and copyrights 
is declared by the federal Constitution. 

"Congress shall have power — to promote the progress of sci- 
ence and useful arts, by securing for limited times to authors and 
inventors the exclusive right to their respective writings and disco- 
veries." Cons, of U. S. Art. I. Sect. VIII. 8. 

There are Acts of Congress securing to authors of books, &c., 
being citizens of the United States, or residents therein, the exclu- 
sive right of printing, publishing and selling them, for twenty-eight 
years, to be renewed for fourteen years, by the author, or his widow, 
or children ; and to inventors of useful arts, machines, manufactures, 
&c. the exclusive right of making and selling the same for fourteen 
years. 

The right intended to be secured to an author is called a cojyy- 
right ; and to an inventor a patent right. 

Piracies and felonies on the high seas. 

15 T. " Congress shall have power — to define and punish pira- 
cies and felonies on the high seas." Cons, of U. S. Art. I. Sect. 
VIII. 10. 

Piracy is defined by the law of nations to be robbery, or a forcible 
depredation, on the high seas, without lawful authority. And by 
the high seas is understood not only the ocean out of sight of land, 
but waters on the sea coast beyond the boundary of low water 
mark. 

Congress has the right to pass laws to punish pirates, though 
they be foreigners, and may have committed no particular offence 
against the IJnited States ; and for the purpose of giving jurisdic- 
tion, it is of no importance on whom, or where a piratical offence 
has been committed. 

By Act of Congress, robbery on the high seas, or in any open 
roadstead or bay, where the sea ebbs and flows, in or upon any 
vessel or its crew, or lading, is punishable as piracy. 

Grimes and offences against the United States. 

158. The government of the Union being formed for national 
purposes only, its power to define and punish offences is limited to 
those which affect the whole country ; whilst the several States have 
the power of legislation, and jurisdiction, in relation to crimes and 



CH. m.] CONGRESS OF THE UNITED STATES. 103 

offences generally, of a local and municipal character, as bclongiuij,- 
to their internal police. 

159. The power of Congress to punish crimes and offences is 
either express or incidental. 

160. There are five classes of crimes and offences against thi; 
United States, which Congress has defined and punished, in pur- 
suance of its express power gi'anted by the federal Constitution. I. 
Treason against the IJnited States. II. Offences against the law of 
nations ; as violations of safe-conducts, or passports, for the pro- 
tection of aliens, issued by the authority of the United States ; in- 
fringement of the rights of ambassadors ; and piracy. III. Offences 
committed on the high seas ; as piracy, murder, manslaughter, may- 
hem, robbery and larceny and other felonies ; being concerned in 
the foreign slave trade ; and certain offences against ships and ves- 
sels. IV. Counterfeiting the securities and current coin of the 
United States. Y. Offences committed in places where Congress 
has the power of exclusive legislation ; as in the District of Colum- 
bia, the territories of the United States, and places purchased by 
the general government for forts, arsenals, dock-yards, and the like ; 
as murder, manslaughter, arson, mayhem, larceny, and other fel- 
onies. There is a general provision by Act of Congress, that if 
any offences be committed in such place of exclusive federal juris- 
diction, not specially provided for, the punishment shall be the same, 
as is provided for such an offence by the laws of the State in whicli 
the place is situated. Unless the jurisdiction of the State over 
such a place has been expressly reserved, in the cession or grant 
thereof, it entirely ceases. 

161. There are many offences against the United States which 
have been defined, and their punishment provided for by Congress 
in pursuance of its incidental powers. These offences are princi- 
pally included in the following classes. Offences against the rev- 
enue laivs ; the power to punish which is incidental to the power 
of Congress "to lay and collect taxes, duties, imposts and excises. " 
Offences against the laws in relation to the Indians and their 
territories; which are declared by Congress under its powers 
incidental to the power to regulate commerce " with the Indians. " 
Some of these offences are, entering the territory secured to the 
Indians, south of the Ohio river, without a passport from the proper 
authority ; so entering any other such territory, for the purpose of 
hunting and grazing ; committing any offence against the person or 
property of a friendly Indian within the Indian territory ; trading 
with the Indians for the purchase of land, without authority from 
the general government ; settling upon any lands belonging to the 
Indians, or attempting so to do ; trading with the Indians without 
license ; an Indian agent being concerned in any trade with Indians 
on his own account ; any Indian or otlier person committing \\nthin 



lU-t CONGRESS OF THE TNITED STATES. [PAET I. 

the Indian territorv any offence whicli would be punishable if com- 
mitted witMn places of exclusive federal jurisdiction. 

Offences against the post-office regulations ; the power of Con- 
gress to provide for the punishment of which is incidental to its 
power "to establish post-offices and post roads.-' Certain offen- 
ces in regard to foreign nations: made punishable by virtue of 
the incidental power which the general government has in preserv- 
ing the peace of the country with foreign nations, and directing its 
foreign relations. Some of this class of offences are ; accepting 
and exercising by an American citizen, within our jurisdiction, a 
commission to serve one foreign government against another foreign 
government at peace with us ; enlisting, within oui' jurisdiction, in 
the service of any foreign government on board of any vessel of 
war ; fitting out or arming, or being concerned, within our jurisdic- 
tion, of any vessel for the service of one foreign government against 
another with which our country is at peace ; being concerned in 
setting on foot any military expedition against any foreign govern- 
ment with which we are at peace ; and the like. Offences com- 
mitted hy officers of the general government; which are made 
punishable by virtue of the power to appoint such officers, and of 
the interest and incidental power which every government has to 
protect itself from injury done by its own functionaries or agents. 
These offences are ; taking illegal fees, extortion by color of offlce, 
embezzlement of the public money or property, and the like. 

Offences against the lav: of nations. 

162. Congress has power to define and punish offences against 
the law of nations. Cons, of U. S. Art. I. Sect. YIII. 10. (o) 

Offences against the law of nations are violations of safe con- 
ducts, or passports, infringements of the rights of ambassadors or 
other foreign ministers, and piracies. There are Acts of Congress 
providing for the punishment of these offences. 

Poiocr to declare icar. 

163. The power of declaring war is vested in Congress. 
"Congress shall have power — to declare war; grant letters of 

marque and reprisal ; and to make rules concerning captures on 
sea and land." Cons, of U. S. Art. I. Sect. YIII. 11. 

164. Letters of marque and reprisal are commissions from a 
government to private citizens to seize and capture the bodies or 
property of another nation. They are generally issued in time of 
war. A person so commissioned is called a privateer. 

165. There is a prohibition in the federal Constitution as to 
any State engaging in war. 

(o) See above. Chap. 11. as to the law of nations. 



ClI. III.] CONGRESS OF THE UNITED STATES. 105 

" No State shall, without the consent of Congress, engage in 
war, unless actually invaded, or in such imminent danger as will 
not admit of delay." Cons, of U. S. Art. I. Sect. X. 2. 

" No State shall grant letters of marque and reprisal." Art. 
I. Sect. X. 1. 

Army and Navy. 

166. Congress is authorized to raise and support armies and 
navies, and provide for their government. 

" Congress shall have power — to raise and support armies ; but 
no appropriation of money to that use shall be for a longer term 
than two years." Cons, of U. S. Art. I. Sect. Till. 12. 

" Congress shall have power — to provide and maintain a navy. " 
Cons, of U. S. Art. I. Sect. VIII. 13. 

" Congress shall have power — to make rules for the government 
and regulation of the land and naval forces." Cons, of U.S. 
Art. I. Sect. YIII. 14. 

The several States are prohibited from keeping troops or ships 
of war 

' ' No State shall, without the consent of Congress, keep troops 
or ships of war in time of peace." Cons, of U. S. Art. I. Sect. 
X. 2. 

Military academy. 

167. How is the power of Congress to establish a military 
academy derived ? 

It is an incidental power ; incidental to the powers to make war, 
to raise armies, to provide and maintain a navy, and to lay and 
collect taxes, to provide for the common defence and general 
welfare. 

Militia. 

168. What is the power of Congress as to calling out the 
militia ? 

" Congress shall have power — to provide for calling out the 
militia, to suppress insurrections, and repel invasions. " Cons, of 
U. S. Art. I. Sect. YIII. 15. 

169. What is the power of Congress as to organizing, arming, 
disciplining, and governing the militia ? 

" Congress shall have power — to provide for organizing, arming 
and disciplining the militia, and for governing such part of them 
as may be employed in the service of the United States, reserving 
to the States, respectively, the appointment of the officers, and the 
authority of training the militia, according to the discipline pre- 
scribed by Congress." Cons, of U. S. Art. I. Sect. VIII. 16. 



106 CONGRESS OF THE UNITED STATES. [PART I. 

170. The President of the IJuited States is Commander-in-chief 
of the militia of the several States, when called into the actual ser- 
vice of the United States. Cons, of U. S. Art. II. Sect. II. ] . 

111. How are arms provided for the militia ? 

Under Acts of Congress, the general government furnishes to 
the several States arms and military equipments in proportion to 
their number of militia respectively. There are national armories 
for the manufacture of such arms and equipments. The arms and 
equipments thus supplied are preserved by the States, to be distri- 
buted to the militia for discipline, and to be ready for actual 
sei'vice. 

112. There are Acts of Congress for organizing and disciplining 
the militia in the several States. 

113. There are /^cts of Congress providing in what manner the 
militia may be called forth into the service of the United States. 

It is provided, in general, by the Acts of Congress, that the 
President of the United States shall be authorized, in case of inva- 
sion, or of imminent danger of it, to call forth such number of the 
militia, most convenient to the scene of action, as he may deem 
necessary. The President's orders, for this purpose, may be given 
to the chief Executive magistrate of a State, or to any militia officer 
he may think proper. The manner in which the militia is to be 
organized, armed, disciplined and governed, is prescribed ; and 
provision made for drafting, detaching, and calling forth the State 
quotas, when required by the President. The militia so called out 
are made subject to the rules of war. And persons refusing or 
neglecting to perform military service, when regularly called or 
drafted, are liable to a fine, to be adjudged by a court martial, 
composed of militia officers. 

1T4. It has been adjudged by the Supreme Court of the United 
States, that under the federal Constitution and Acts of Congress, 
it belongs exclusively to the President to judge when the exigency 
arises, in which he may call forth the militia, (^j) 

Seat of government of the United States, &c. — Legislation over 
the District of Columbia, Sc. 

Its. The Constitution has vested Congress with the power of 
exclusive legislation over certain districts and places. 

"Congress shall have power; — to exercise exclusive legislation 
in all cases whatsoever, over such district, (not exceeding ten miles 
square) as may, by cession of particular States, and the acceptance 
of Congress, become the seat of government of the United States, 
and to exercise like authority over all places purchased, by consent 
of the Legislature of the State in which the same shall be, for the 

^ n) Kent",;; Coium. ou American Law, pp. 2G4, 265. 



CH. nij CONGRESS OF THE UNITED STATES. lOT 

erection of forts, magazines, arsenals, dock-yards, and other needful 
buildings." Cons, of U. S. Art. I. Sect. VIII. 11. 

176. The District of Columbia, iu which is the city of Wash- 
ington, has become the seat of government of the United States. 

The District of Columbia was ceded to the United States by 
the States of Maryland and Virginia. It is governed by laws made 
directly by Congress, either adopting those which were in force 
I'^hen, or enacting new provisions. 

There is no Representative or Senator in Congress from it. 
Nor has it any local Legislature. 

A citizen of this District is not a citizen of a State within the 
meaning of the word "State" in the Constitution of the United 
States, and therefore cannot maintain a suit in the federal courts 
against a citizen of a State, (q) 

Congress, when legislating for the District, under this Constitu- 
tional provision, is the Legislature of the Union, and its Acts arc 
the laws of the United States. Such laws are not confined in their 
operation to the District, (r) 

The power of Congress to exercise legislation in all cases within 
the District, includes the power of taxing it ; and Congress may 
impose a direct tax on the District, in proportion to the census 
directed by the Constitution to be taken, (s) 

A Justice of the Peace in the District is an officer of the 
government of the United States, (t) 

The Acts of Congress concerning the District did not change 
the law^s of Virginia and Maryland, adopted by the Act of Con- 
gress as the laws of the District, further than a change of jurisdic- 
tion rendered a change in those laws necessary, (u) 

By the Acts of Congress there is a Court established for the 
District, called the Circuit Court, consisting of a chief Judge and 
two assistant judges, to be appointed by the President of the United 
States, for good behaviour ; and having, together with the juris- 
diction vested iu the Circuit Courts of the United States and the 
judges thereof, cognizance of all crimes and offences committed 
within said District, and of all cases in law and equity arising 
therein ; the said court to appoint its clerks. An Attorney of the 
United States for the said district, a marshal, a register of wills 
and Judge of the Orphan's Court, and Justices of the Peace, for 
the District, are also appointed by the President. It is provided 
that all indictments shall be in the name of the United States, and 
conclude against the peace and government thereof. The city of 
Washington was incorporated by Act of Congress. 



(q) 4 Crancli, 445 ; Peteis C. C. R. 4'), (,•; 6 Wheat. 424. 

(s) 5 Wlieat. 317. (t) 3 Craiich. 331. (u) 1 Crandu 252. 



108 CONGRESS OF THE UNITED STATES. [PART T. 

Treason and the punishment thereof. 

177. Congress shall have power to declare the punishment of 
treason ; but no attainder of treason shall work corruption of 
blood, or forfeiture, except during the life of the person attainted. 
Cons, of U. S. Art. Y. Sect. II. 2. 

178. Treason against the United States is defined by the 
federal Constitution. 

' ' Treason against the United States shall consist only in levying 
war against them, or in adhering to their enemies, giving them 
aid and comfort. No person shall b^ convicted of treason unless 
on the testimony of two witnesses to the same overt act, or on 
confession in open court. " Cons, of U. S. Art. III. Sec. III. 1. 

179. The term "war" in this provision comprehends internal 
rebellion as well as hostilities from abroad ? 

Territory and property of tlve United States. 

180. What power has Congress as to the territory and property 
of the United States ? 

" The Congress shall have power to dispose of, and make all 
needful rules and regulations respecting the territory, or other 
property, belonging to the United States." Cons, of U. S. Art. 
lY. Sect III. 2. 

This territory consists of all the vacant and other lands belonging 
to the United States. It constitutes the public domain. It is 
the exclusive property of the Union, subject only to the Indian 
rights that may exist 

The United States acquired their title to the public lands ; by 
transfer or succession from Great Britain, as the effect of the 
revolution, and by the treaty of peace thereon with that nation ; 
by cessions from the different States ; and by purchase, or treaty, 
from foreign governments. 

By Acts of Congress provision is made for the survey and sale 
of the public vacant lands. There is a branch of the treasury 
department of the United States called the department of public 
lands, and placed under the control of a chief officer, entitled 
commissioner of the general land office. Before any proceedings 
for the sale of such lands, the Indian title to them is extinguished 
by treaty through Indian agents, appointed by the government. 
Such territory is divided into districts, in each of which there is a 
register and a receiver of public moneys. A. surveyor general 
is appointed for a certain number of districts. The territory Is 
surveyed into ranges, townships, and sections. The townships 
are six miles square, and divided into thirty-six sections of one 
mile square ; a section thus containing six hundred and forty acres. 
The sections are also divided into half sections, quarter sections, and 



on. in.] CONGRESS OP THE U^'ITED STATES, 105 

eighths Oi a section. The public lands arc offered for sale, at 
first, by auction, at not less than one dollar and a quarter per acre, 
to be paid at the time ; and, if not then sold, thej' are open for 
private sale at the land office in the district, at that price. Salt 
springs and lead mines on the public lands are reserved to the 
IJnited States. One section of land in every township is appro- 
priated by Act of Congress for the purposes of education. 

181. It was the condition annexed to the cession of their 
public lands to the general government by the States, in relation 
to the proceeds of the sale of them, that they should be a common 
fund for the joint benefit of the then existing and future members 
of the Union. 

' ' These lands, therefore, constitute a fund which may be properly 
devoted to any objects which are for the common benefit of the 
Union, "(j) 

182. The general government has power to acquire and pur- 
chase foreign territory, by conquest, or treaty, or cession. It is 
incidental to the power to make war, and to form treaties. 

The power to make such purchases is not expressly conferred by 
the federal Constitution. It appears to be incidental to the powers 
to form treaties, and to raise and appropriate money ' ' for the 
common defence and general welfare." 

" Since the adoption of the federal Constitution large acquisitions 
of national territory have been made by the purchases of Louisiana 
and Florida, and by cession from the State of Georgia ; and the 
constitutionality of the two former acquisitions, though foraierly 
much questioned, is now considered settled beyond any doubt, (k) 

And at a later period the territories of California and New 
Mexico have been acquired by treaty. 

183. The power of Congress over the public territory and pro- 
perty is exclusive and universal. Its legislation over such territory 
without the limits of the several States is absolute and unlimited, 
unless so far as it is affected by stipulations in the cessions, or by 
ordinances or laws under which it has been settled. 

But the power of Congress to regulate other national property is 
not necessarily exclusive in all cases, unless it has acquired by 
cession of the States exclusive jurisdiction. If the national govern- 
ment owns a fort, arsenal, hospital, or light house establishment, 
not so ceded, the general jurisdiction of the State is not excluded 
in regard to the site ; but subject to the rightful exercise of the 
powers of the national government, it remains in full force. (I) 



(j) 3 Story Comm. p. 198 (fc) 3 Story's Comm. p. 191. 

(/) 3 Story's Comm. 198. 

10 



no CONGRESS OF THE TXIXED STATES. [PART I. 

Territorial governments. 

184. The territorial goA^emments of the United States are 
governments of the territories belonging to the United States, and 
not lying within the limits of any State. These governments are 
created by Act of Congress, and are dependent upon the general 
government. 

' ' As the general government possesses the power to acquire 
territory, either by conquest or by treaty, it would seem to follow, 
as an inevitable consequence, that it possesses the power to govern 
what it has so acquired. The territory does not, when so acquired, 
become entitled to self-government, and it is not subject to the 
jurisdiction of any State. It must, consequently, be under the 
dominion and jurisdiction of the Union, or it would be without any 
government at all. ' ' 

" Xo one has ever doubted the power of Congress to erect terri- 
torial governments within the territory of the United States, under 
the general language of the clause "to make all needful rules and 
regulations. ' ' What shall be the form of government established 
in the territories depends exclusively upon the discretion of Con- 
gress. Having a right to erect a tenitorial government, they may 
confer upon it such powers, legislative, judicial and executive, as 
they may deem best. They may confer upon it general legislative 
powers, subject only to the laws and Constitution of the United 
States, "(m) 

185. The governments in those territories are established by 
Acts of Congress There is for each territory a Grovernor, judges 
and other officers, appointed by the general government ; and a 
Legislature, consisting of a House of Representatives and legisla- 
tive council, elected by the people ; the Governor having an abso- 
lute negative iTpon the Acts of the Legislatm-e.(«) 

186. The territories have representatives in Congress. There 
is one Delegate from each territory, chosen by the Legislature 
thereof, to the House of Representatives of the United States ; 
but who cannot vote therein. 

It is the opinion of some statesmen and jurists, that this provision 
gives no express power to Congress to institute a ten-itorial go- 
vernment. In their view the authority thereby given is limited to 
the regulation of the property of the government, to dispose of the 
territory, being the land, or other property, which authority may 
be exercised as well within a State as a territory ; and political 
power is not ■^athin the grant ; there being no specific power in 
the Constitution which authorizes the organization of territorial 
governments, if this power be implied from this provision relative 

(k) 3 Storj-s Comm. p. 193-4. 

(n) See abov-e, chap. L, head Territorial Governments. 



CH. III.] CONGRESS OP THE UNITED STATES, 111 

to the disposition and regulation of the public lauds, it must be 
limited to means suitable to the end in view. 

It is held by others, that the provision gives an implied power 
to Congress to organize a government for the protection of lands 
purchased or acquired, and for the administration of justice among 
the settlers. 

It is also held, that the power to organize a government over a 
territory and its people is implied, independently of the above pro- 
vision, from the power to acquire and possess the territory, as a 
district of country, and an addition to the general territory of the 
Union ; that the right to acquire and possess the territory being 
admitted, the authority to goveim it is implied from the inherent 
necessary powers of the government. 

Admission of new States into the Union. 

18T. What is the provision of the federal Constitution as to 
the admission of new States into the Union ? 

"New States may be admitted by Congress into this Union ; but 
no new State shall be formed or erected within the jurisdiction of 
any other State, nor any State be formed by the junction of two or 
more States, or parts of States, without the consent of the Legis- 
latures of the States concerned, as well as of the Congress." Cons, 
of U. S. Art. IV. Sect. III. 1. 

188. Is there any limitation of this power in regard to the form 
of government of a State which it is proposed to admit ? 

" The United States shall guarantee to every State in the Union 
a republican form of government. " Cons, of U. S. Art. IV. Sect. 
IV. 

189. Congress has power to admit into the Union a new State 
out of territory acquired of a foreign country by conquest or treaty. 

"As an incidental power, the constitutional right of the United 
States to acquire territory would seem so naturally to flow from the 
sovereignty confided to it, as not to admit of very serious question. 
The Constitution confers on the government of the Union the power 
of making war and of making treaties ; and it seems, consequently, 
to possess the power of acquiring territory either l:)y conquest or 
treaty. If the cession be by treaty, the terms of that treaty must 
be obligatory; for it is the law of the land. And if it stipulates for 
the enjoyment by the inhabitants of the rights, privileges and im- 
munities of citizens of the United States, and for the admission of 
the territory into the Union as a State, these stipulations must be 
equally obligatory. They are within the scope of the constitutional 
authority of the government, which has the right to acquire terri- 
tory, to make treaties, and to admit new States into the Union, "(o) 

(o) story's Comm. p. 460. And see, above, p. 108, 109. 



112 CONGRESS OF THE UNITED STATES. [PART I. 

190. Congress has a right to impose a restriction, prohibiting 
the introduction of slavery into a State, as a condition of its ad- 
mission into the Union. 

"By this provision (of the federal Constitution), the whole sub- 
ject of admitting new States, where other States are not interfered 
with, is placed under the control of Congress, with the single re- 
striction, contained in another clause, that their constitutions must 
be republican. ' ' (p) 

' ' At the time when the preliminary measures were taken for the 
admission of the State of Missouri into the Union, an attempt was 
made to include a restriction, prohibiting the introduction of slavery 
into the State as a condition of its admission. On that occasion 
the question was largely discussed, whether Congress possessed a 
constitutional authority to impose such a condition, upon the ground 
that the prescribing such a condition is inconsistent with the sove- 
reignty of the State to be admitted, and its equality with the other 
States. The final result of the vote which authorized the erection 
of that State, seems to establish the rightful authority of Congress 
to impose such a restriction, although it was not then applied. In 
the Act passed for this purpose there is an express clause, that in 
all the territory of Louisiana, which lies north of 36° 30' i^orth 
latitude, not included within the limits of the State of Missouri, 
slavery and involuntary servitude shall be forever prohibited. An 
objection of a similar character was taken to the compact between 
Virginia and Kentucky, containing conditions upon which the latter 
was erected into a separate State, upon the ground that it was a 
restriction upon State sovereignty. But the Supreme Court of the 
United States had no hesitation in oven-uling the objection, consi- 
dering it as opposed to the theory of all free governments, and 
especially of those which constitute the American republics. "(5) 
191. Is an Act of Congress constitutional which provides that 
a foreign territory shall, with the consent of the government or 
people thereof, be annexed to this country, and admitted into the 
Union as a State, or to be entitled to be so admitted upon the 
same terms as tenitory now within the Union ? The measures taken 
to effect the annexation of Texas to this country have raised this 
question, on which there has been much difference of opinion. On 
the one hand, against the constitutionality of such an Act, the argu- 
ment has been advanced, that our general government is one of 
limited powers, distributed amongst distinct departments or branches 
of government, which are constituted in a particular manner, each 
operating in its appropriate sphere, and intended as a check upon 
the others ; that by the Constitution a treaty making power is 
speciallv established, the Constitution providing that the President 

(p) Walker's American Law, p. 45. (q) 3 Story's Comm. p. 191. 

/ 



CH. in.] CONGRESS OP THE UNITED STATES. 113 

' ' shall have power, by and with the advice and consent of the 
Senate, to make treaties, provided two-thirds of the Senators pre- 
sent concur;" and that the power of making an arrangement, or 
of adopting any measures with a foreign government or people, is 
thus exclusively vested in the President and Senate. On the other 
hand, in favor of effecting such an annexation by the ordinary 
legislation of Congress, it is maintained that the power to do so is 
contained in the constitutional provision that ' ' new States may be 
admitted, by Congress, into this Union." 

There appears to be much reason for the opinion, that, in what- 
ever manner territory may be acquired by the general government, 
or annexed to this country, the power to admit into the Union new 
States, to be formed out of such territory, is exclusively in " Con- 
gress, "to be exercised in the course of legislation. 

General provision as to the powers of Congress. 

192. There is a general provision in the federal Constitution as 
to the powers of Congress and its authority to carry them into effect. 

" Congress shall have power — to make all laws which shall be 
necessary and proper for carrying into execution the foregoing 
powers, and all other powers vested by this Constitution in the 
government of the United States, or in any department or officer 
thereof." Cons, of U. S. Art. I. Sect. YIII. 18. (k) 

State acts and records — their proof and effect in other States. 

193. Congress has power to prescribe the manner in which the 
public acts, records and judicial proceedings of any State shaJ] be 
proved in every other, and the effect thereof 

" Full faith and credit shall be given in each State to the public 
acts, records and judicial proceedings of every other State. And 
Congress may, by general laws, prescribe the manner in which such 
acts, records and judicial proceedings shall be proved, and the effect 
thereof." Cons, of U. S. Art. IV. Sect. 1. 

There is a fuller notice of this subject, further on, in Part I. 
chapter VI. 

ACTS OP CONGRESS, OR LAWS OP THE UNITED STATES. 

How they are. enacted. 

194. Laws may originate or be proposed in Congress, in either 
House; except that, by the federal Constitution, "all bills for 
raising revenue shall originate in the House of Representatives, 
but the Senate may propose or concur in amendments, as in other 
bills." Art. I. Sect. VII. 1. 

(h) See chapter in. par. 103—5- 
10* 



114 ACTS OP CONGRESS. [PART I, 

195. Laws are enacted in Congress in this manner :— 

All laws must be first passed in one House, and then in the 
other, according to the rules of proceeding in each House. And^ 
hy the federal Constitution, " every bill which shall have passed 
the House of Representatives and the Senate, shall, before it be- 
comes a law, be presented to the President of the IJnited States ; 
if he approve, he shall sign it ; but if not, he shall return it, with 
his objections, to that Hous^e in which it shall have originated, who 
shall enter the objections at large on their journal, and proceed to 
reconsider it. If, after such reconsideration, two-thirds of the 
House shall agree to pass the bill, it shall be sent, together with 
the objections, to the other House, by which it shall likewise be 
reconsidered, and, if approved by two-thirds of that House, it shall 
become a law. But in all such cases, the votes of both Houses 
shall be determined by yeas and nays, and the names of the persons 
voting for or against the bill shall be entered on the journal of each 
House respectively. If any bill shall not be returned by the Presi- 
dent within ten days (Sundays excepted) after it shall have been 
presented to him, the same shall be a law, in like manner as if he 
had signed it, unless the Congress, by their adjournment, prevent 
its return, in which case it shall not be a law." Cons, of U. S. 
Art. I. Sect. YII. 2. 

196. Every joint resolution, order, or vote of the two Houses 
of Congress, must be presented to the Pi*esident of the United States 
for his approbation. 

" Every joint order, resolution or vote, to which the concurrence 
of the Senate and House of Representatives may be necessary, shall 
be presented to the President of the United States, and before the 
same shall take effect, shall be approved by him, or being disap- 
proved, shall be repassed by two-thirds of the Senate and House 
of Representatives, according to the rules and limitations prescribed 
in the case of a bill. " Cons, of U. S. Art. I. Sect. YII. 3. 

19 T. The President's disapproving a bill is called vetoing it. 

The rules of proceeding in each House of Congress are substan- 
tially the same. 

198. A " bill," in Congress, is an original draft or project of 
a law, introduced into either House according to the rules thereof. 

199. This is the method, in general, of enacting laws by the 
tvro Houses of Congress : — 

Bills are introduced into either House, upon the order of the 
House on the reports of standing or select committees, or upon 
leave granted to an individual member on motion, after due notice 
of his intention to move the House to grant it. 

Standing Committees are appointed for the session, in each 
House, upon all the usual subjects of ordinary legislation, and upon 
the general matters incident to the proceedings of each House. 



CH. ni.] ACTS OF CONGRESS. 115 

Select committees are appointed from time to time upon special 
subjects as they arise, and their powers cease upon the performance 
of the temporal duties assigned to them. 

Both standing and select committees are appointed in the House 
of Representatives on the nomination of the Speaker ; and in the 
Senate most generally by ballot, but in some cases on the nomina- 
tion of the President of the Senate. 

Bills are introduced by Standing Committees upon the order of 
the House upon subjects embraced within the general objects of 
their appointment, either accompanied by a report upon those 
general objects, or upon a particular subject, relative thereto, or 
specially referred to them ; or upon the mere motion of the chair- 
man, or any other member of the Committee, under its direction, 
without previous notice. 

Bills are in like manner introduced by select committees, upon 
the order of the House on a report relative to the special matter 
referred to them, or on motion, without previous notice, for leave 
to report by bill. 

Bills and resolutions before either House are passed by a majority 
of the members present ; except in cases in which a greater number 
is required by the Constitution or rules of the House. 

Important bills are generally referred to a committee of the whole 
House ; and every motion or proposition for a tax or charge upon 
the people, or for a variation in the sum or quantum of a tax or 
duty, or for an appropriation of money, is required first to be dis- 
cussed in a committee of the whole. 

After commitment and report to the House, and at any time 
before its final passage, a bill may be recommitted at the pleasure 
of the House ; and when a bill, either upon the report of the com- 
mittee, or after full discussion and amendment in the House, stands 
•for the next stage of its progress, the question is whether it shall 
be engrossed and read a third time. 

When a bill has been engrossed for a third reading, and, upon 
being read the third time, has passed one House, it is transmitted 
for concurrence to the other House, in which it is subjected to similar 
forms of examination and discussion. 

If it be altered or amended, or agreed to without amendment, or 
totally rejected, in the House to which it has been sent for concur- 
rence, it is, in either case, returned to the House in which it origin- 
ated, with a message communicating the result. 

If amendments be made to a bill in the House to which it is 
transmitted for concurrence, they must be acted upon by the other 
House, and if agreed to, the bill is passed ; if disagreed to, the 
House making them must recede from them, or, if they are insisted 
upon, the bill fails, unless the two Houses, through committees of 
conference, or otherwise, come to an agreement on the subject 



116 ACTS Of COXGRESS. [PART I. 

Wlien a bill has passed both Houses of Congress, it is delivered 
to a joint committee of both Houses for enrollment, •who see that 
it is correctly copied ; it is then signed by the presiding ofl&cers 
and clerks of the two Houses ; and presented, by a joint committee, 
to the President of the United States for his approval, or disap- 
proval of it. 

Avihority and force of Acts of Congress. 

200. The authority and force of the Acts of Congress are de- 
clared by the federal Constitution. (?) 

' ' This Constitution, and the laws of the United States, which 
shall be made in pursuance thereof; — shall be the supreme law of 
the land ; and the judges in every State shall be bound thereby, 
any thing in the Constitution or laws of any State to the contrary 
notwithstanding." Cons, of TJ. S. Art. YI. 2. 

201. The power to make laws includes the power to repeal 
them. An Act of Congress which has been passed in all the con- 
stitutional forms, may at any time be repealed by another Act 
passed by the same Congress, or at a subsequent one in the same 
manner. 

202. A law enacted by Congress, and approved by the Presi- 
dent, or passed constitutionally without his approval, is called an 
Act of Congress, or law of the United States. 

A statute is a written law of a country, made and enacted by 
the legislative authority thereof The Acts of Congress are statutes 
of the United States. (??i) 

203. An Act of Congress is to be considered as having been 
passed and enacted, when it was approved and signed by the Preei- 
dent of the United States, or, without his approval, became a law, 
as prescribed by the federal Constitution. 

204. The date of an Act of Congress is the day of its being 
approved by the President of the United States, or of its becoming 
a law. 

205. The latest statute repeals all former statutes on the same 
subject, so far as their provisions are contrary to or inconsistent 
with it. 

206. An Act of Congress, which has gone through all the forms 
of a law, may be declared unconstitutional and void. Any Act of 
Congress which is contrary to the provisions of the federal Consti- 
tution, is void ; and may be so adjudged by the courts of justice, 
in the administration of the law. 

20t. An Act of Congress may be finally adjudged to be con- 
stitutional or unconstitutional, and consequently valid or void, by 
the Supreme Court of the United States ; to which appeals may be 

CO See Part II. diap. II. (rn) See Part I. chap. I, p. 23. 



CH. in.] ACTS OF CONGRESS. HY 

had from all the inferior Courts of the United States ; and from 
the highest court of law or equity in any State, when the validity 
or construction of any such Act of Congress shall be drawn in 
question, and the decision shall be against it. (n) 

208. An Act of Congress cannot, under the Constitution, be 
declared void or annulled by a State. Acts of Congress are, by the 
federal Constitution, made the supreme law of the land, to be con- 
strued as to their validity and meaning only in the manner directed 
by the Constitution, (o) 

209. The State courts may in the ordinary course of adminis- 
tering justice, pronounce a law of the United States, or an authority 
exercised under the national government, to be void, as repugnant 
to the federal Constitution ; but this power is exercised subject to 
the appeal which lies in all such cases to the Supreme Court of the 
United States, whose decision alone is final and conclusive. And 
an adjudication of a State court can, at all events, be only binding 
in the particular suit or case in which it was made, or according to 
the jurisdiction of the Court. 

(n) See Part II. chap. IX. head Judiciary ; and also chap. II. p. 38. 
Co; See Part I. chap. II. p. 38 ; and Part II. chap. I. 9, 17. 



CHAPTER lY. 

POWERS PROHIBITED TO CONGRESS AND THE GENERAL GOVERN- 
MENT. 

1. There are certain powers expressly prohibited, by the federal 
Constitution, to the Congress and to the general government, (a) 
It is provided that Congress shall not pass certain laws, which are 
mentioned and described, or any laws relative to a particular sub- 
ject. 

2. There are powers the exercise of which is prohibited to Con- 
gress by certain general principles and provisions contained in the 
federal Constitution. These provisions are of a general nature, in 
reference to the powers of the government and the rights of the 
people, (b) 

3. Congress, or the general government, cannot exercise a 
power prohibited by, or contrary to any provision of the federal 
Constitution. A law passed, or act done in pursuance of such a 
power would be unconstitutional and void. 

Importation of slaves. 

4. There is a provision in the federal Constitution as to the 
importation of slaves. 

' ' The migration or importation of such persons as any of the 
States now existing shall think proper to admit, shall not be pro- 
hibited by the Congress prior to the year one thousand eight hun- 
dred and eight ; but a tax or duty may be imposed on such importa- 
tion, not exceeding ten dollars for each person." Cons, of U. S. 
Art. I. Sect. IX. 1. 

5. This pravision implies that Congress has had the power, 
since the year 1808, and now possesses it, to prohibit the importa- 
tion of slaves. 

Such a power is included in the power of Congress to regulate 
commerce. And there are laws of the United States prohibiting 
such importation from a,nj foreign country, under severe penalties ; 
and declaring any participation in the foreign slave trade to be 
piracy, (c) 

(a) See above, chapter I. p. 24, and chapter III. p. 69, as to the classifi- 
cation of the powers of Congress and the government. 

(b) See Part I. chapter VII. 

( c} See Part I , chapter III head Power of Congress to regulate Commerce. 

lis 



CH. rv.] POWERS PROHIBITED TO CONGRESS, &C. 119 

6. By the Acts of Congress of IT 94 and 1800, all citizens of 
the United States, and residents thereof, were prohibited, under 
severe penalties, from being in any way concerned in carrying on 
the slave trade, except for the direct importation of slaves into the 
country. In 1807 an Act of Congress was passed prohibiting 
altogether such importation, to take effect from the first day of the 
year 1808. The Act of Congress of 1820 declares any participation 
in the foreign slave trade to be piracy, and punishable with death. 

T. The ordinance of Congress of lt8T, providing for the go- 
vernment of the North-western Territory, forever prohibited slavery 
therein. The Act of Congress admitting Missouri as a State into 
the Union, expressly prohibits slavery in all the territory west of the 
Mississippi and North of the latitude of 36° 30', except Missouri. 

This last mentioned Act is called the " Compromise Act. " It 
was repealed, so far as respects the provision stated, by the Act of 
Congress of 1854, for organizing a government in the territory of 
Nebraska. 

Writ of Habeas Corpus. 

8. The privilege of the writ of Habeas Corpus is expressly 
secured by the federal Constitution. 

"The privilege of the writ of Habeas Corpus shall not be 
suspended, unless when in case of rebellion, or invasion, the public 
safety may require it. ' ' Cons, of U. S. Art. I. Sect. IX. 2. 

9. It is a writ issued by a judge or a court of justice, at the 
instance, or in behalf of a person alleged to be unlawfully impri- 
soned, or deprived of his liberty, in any manner; requiring that he 
shall be produced, with the cause of his imprisonment, before a 
judge or court of justice, that, if sufficient cause is not shown to 
the contrary, he may be discharged or liberated. 

It may be used for the purpose of having a person who has been 
arrested or imprisoned, on a criminal charge, discharged on his 
giving bail for his appearance to answer the charge before the 
proper court, or in order to reduce the amount of bail required. 

There is a similar provision in the constitutions of most of the 
States, (d) 

Bill of attainder. 

10. " No bill of attainder shall be passed. " Cojis. U. S. Art. 
I. Sect. IX. 3. 

11. A bill of attainder is a special law, inflicting capital punish- 
ment on a particular person or persons for an offence or offences 
before committed, without a trial or conviction in the ordinary 
courts of justice. Such punishment was formerly attended with 

(d) See Part II. chapter III. 



120 POWERS PROHIBITED TO CONGRESS, &C. [PART I, 

forfeiture of estate, and the corruption of the blood, called in law 
' ' attainder, " so as to take away or prevent all right of inheritance 
or succession in his children, (e) 

If the law inflicts a milder punishment than death, it is called a 
Bill of Pains and Penalties ; but it seems that Bills of Attainder, 
in the sense of the Constitution, include these. 

There is a similar provision in the constitutions of the several 
States. (/) 

12. " But no attainder of treason shall work corruption of blood, 
or forfeiture, except during the life of the person attainted. " Co ?is. 
of U. S. Art. III. Sect. III. 2. 

Ex post facto laws. 

13. " 1^0 ex post facto law shall be passed." Cons, of U. S. 
Art. I. Sect. IX. 3. 

An ex post facto law is a law relative to an act done or commit- 
ted before the law was enacted. It has been adjudged that the 
prohibition refers only to criminal laws, and applies to any law 
which makes an act criminal which was before innocent, or punish- 
able in a mode or measure in which it was not punishable when the 
act was committed, unless it be to diminish the punishment. 

Such a law is one that makes an act criminal which when com- 
mitted was no offence. 

There is a similar provision in most of the Constitutions of the 
several States, (gr) 

As to taxes or duties. 

14. There is a prohibition in the federal Constitution as to the 
manner of laying taxes or duties, by Congress. 

" No capitation(/i) or other direct tax, shall be laid, unless in 
proportion to the census or enumeration hereinbefore directed. ' ' 
Cons, of U. S. Art. I. Sect. IX. 4. 

Representatives in Congress, and direct taxes, being apportioned 
among the several States, according to the number of inhabitants 
within them respectively, to be computed in the manner directed, 
this section and the federal method of computation have been con- 
sidered in another part of this work, {i) 

As to taxes on exports. 

15. " No tax or duty shall be laid on articles exported from 
any State." Cons, of U. S. Art. I. Sect. IX. 5. 

The several States are also prohibited to lay imposts or duties on 
imports or exports. Cons, of U. S. Art. I. Sect. X. 2. 

(e) See Part II. chap. III. (f) See Part II. chapter III. 

((/) See Part II. chapter III. 

(h) See Part I. chapter III. as to the meaning of the terms. 
({) See Part I, chapter III. p. 75-6, 195. 



CH. IV.] POWERS PROHIBITED TO CONGRESS, &C. 121 

As to the ports and commerce of the several States. 

16. "No preference shall be given, by any regulation of com- 
merce or revenue, to the ports of one State over those of another; 
nor shall vessels bound to or from one State be obliged to enter, 
clear, or pay duties in another." Cons, of U. S. Art. I. Sect. 
IX. 5. 

Drawing money from the treasury. 

lY. There is a prohibition in the federal Constitution as to 
drawing money from the treasury of the United States. 

' ' No money shall be drawn from the treasury but in consequence 
of appropriations made by law. ' ' Cons, of U. S. Art. I. Sect. 
IX. 6. 

Appropriations of money can only be made by Acts of Congress 
duly passed and enacted, and money be drawn from the treasury 
in pursuance thereof. 

Appropriations for raising and supporting armies. 

18. There is a constitutional prohibition upon Congress in rela- 
tion to such appropriations. 

" But no appropriation of money to that use shall be for a longer 
term than two years." Cons, of U. S. Art. I. Sect. YIII. 12. 

Titles of nobility, &c. 

1 9. The prohibition in the federal Constitution on this subject is — 
" No title of nobility shall be granted by the United States ; and 

no person holding any office of profit or trust under them shall, 
without the consent of Congress, accept of any present, emolument, 
office or title of any kind whatever, from any king, prince or foreign 
State." Cons, of U. S. Art. I. Sect. IX. 

As to religion. 

20. What prohibition is there to Congress as to an establish- 
ment of religion, or preventing the exercise thereof ? 

' ' Congress shall make no law respecting an establishment of 
religion, or prohibiting the free exercise thereof." Cons, of U. S. 
Amend. Art. I. 

' ' But no religious test shall ever be required as a qualification 
to any office or public trust under the United States." Cons, of 
U.S. Art. VI. 3. 

Freedom of speech and the press. 

21. There is a prohibition to Congress securing the freedom of 
speech and of the press. 

(j) See Part I. chapter III. p. 102. 
11 



123 POWERS PROHIBITED TO CONGRESS, &C. [PART I. 

' ' Congress shall make no law abridging the freedom of speech 
or of the press." Cons, of U. S. Amendment, Art. I. 

Bight of petition. 

22. What prohibition to Congress is there as to the right of 
petition ? 

' ' Congress shall make no law abridging the right of the people 
peaceably to assemble, and to petition the government for redress 
of grievances." Cons, of U. S. Amend. I. 

General provisions as to powers not delegated. 

23. What general provisions are there in the federal Constitu- 
tion, as to powers not delegated to the United States ? 

" The powers not delegated to the United States by the Consti- 
tution, nor prohibited by it to the States, are reserved to the States 
respectively, or to the people." Cons, of U. S. Amend. Art. X. 

"The enumeration in the Constitution of certain rights shall 
not be construed to deny or disparage others retained by the 
people." Cons, of U. 8. Amend. Art. IX. 

"And nothing in this Constitution shall be so construed as to 
prejudice any claims of the United States or of any particular 
State." Cons, of U. S. Art. IV. Sect. III. 2. 



CHAPTER T. 

POWERS PROHIBITED TO THE SEVERAL STATES, 

1. There are powers proMbited, by the federal Constitution, to 
the several States. It was necessary that the Constitution should 
embrace such limitations and restrictions, in order to preserve con- 
sistency of action amongst the particular States, and in regard to 
them and the general government. They are the results of com- 
promise, for the benefit of the Union ; being a part of those grants 
and concessions, on the part of the people of the several States, the 
combination of which forms the strength and beauty of our system. 

2. These prohibitions are either express or implied. They 
may be also divided into absolute and qualified. 

3. There are powers expressly prohibited to the several States. 
The States are thus forbidden to pass laws, or do acts which are 
specified ; or they are restrained from legislating or acting in rela- 
tion to certain subjects. 

4. There are implied prohibitions of powers to the several 
States, being such as are contained in certain general principles 
and provisions of the Constitution, {k) Such are also included in 
certain rights and privileges secured to the several States and the 
citizens thereof, by the Constitution, (l) They arise, likewise, from 
the grant of exclusive powers to Congress or the general govern- 
ment. 

5. There are powers granted to Congress, or the general go- 
vernment, of such a nature, as to be exclusive, to be solely exer- 
cised by them respectively, and being consequently withheld from 
or forbidden altogether to the several States, (m) 

6. As to that class of powers which exist in the general govern- 
ment, or Congress, and the several States concurrently ; if the 
general government, or Congress, exercises such a power, a State 
cannot exercise it differently. And there are cases, under that 
class, in which if the general government exercises such a power, 
a State cannot, from the nature of the case, legislate on the sub- 
ject, (n) 

t. Absolute prohibitions positively forbid the exercise by the 
several States of certain powers under any circumstances ; those 

(k) See Part I. chapter VII. (I) See Part II. cliap, VI. 

(m) See above, chap. I. p. 33, 34. (n) See above, chap. II. p. 33, 34. 

123 



124 POWERS PROHIBITED TO STATES. [PABT I. 

qualified being of powers not to be exercised " without the consent 
of Congress." 

8. A State cannot pass a law, or exercise a power, contrary to 
any provision of the federal Constitution, to whatever subject it 
may relate ; and whether the provision is considered in reference to 
its express terms, its implied meaning, or its proper bearing and 
effect 

No treaty or alliance^ &c. 

9. There is a prohibition, in the federal Constitution, as to a 
State entering into any treaty or alliance. 

' ' ^o State shall enter into any treaty, alliance or confederation. " 
Cons, of Z7. S. Art. I. Sect. X. 1. 

' ' ISTo State shall, without the consent of Congress, enter into 
any agreement or compact with another State, or with a foreign 
power." Cons, of U. S. Art I. Sect. X. 2. 

The implied power of a State to enter into agreements with 
another State or foreign power, with the consent of Congress, is 
understood to refer only to agreements respecting matters of local 
concern, as questions of boundary and the like. 

10. Not to engage in war. 

" No State shall — grant letters of marque and reprisal " Cons, 
of U. S. Art. I. Sect. X. 1. 

" No State shall, without the consent of Congress, — engage in 
war, unless actually invaded, or in such imminent danger as will 
not admit of delay. ' ' Art. I. Sect. X. 2. 

Not to keep troops, &c. 

11. ''No State shall, without the consent of Congress, — ^keep 
troops or ships of war in time of peace." Gons of U. S. Art. I. 
Sect. X. 2. 

Nat to coin money, emit bills of credit. &c. 

12. ' ' No State shall — coin money; emit bills of credit ; make 
any thiag but gold and silver coin a tender in payment of debts. " 
Cons, of U. S. Art. I. Sect. X. l.(o) 

No law impairing contracts. 

13 " No State shall — pass any law impairing the obligation 
of contracts. " Cons, of ^ U. S. Art. 1. Sect. X. 1. 

14. What has been adjudged as to the construction of this pro- 
vision of the federal Constitution ? 

^ (o) See albove, chapter III. page 90. 



CH. v.] POWERS PROHIBITED TO STATES. 125 

That the prohibition is limited to the passage of any law impair- 
ing prior contracts. That it extends to contracts between States, 
or between a State and individuals ; a charter or law creating a 
private corporation being such a contract, but not a charter or law 
creating a public corporation. ( p) 

By contracts, in the sense of the Constitution, are understood ; 
1. Every executed agreement, whether between individuals or 
between individuals and a State ; 2. Every executory agreement, 
which confers a right of action, or creates abinding obligation, in 
relation to property or some object of value, and which may be 
enforced in a court of justice. But the term contract does not 
comprehend the political relations between a government and its 
citizens. 

A legislative compact or grant is within the meaning of the Con- 
stitution •, and when a law in its nature amounts to a contract, and 
absolute rights have vested under it, its repeal can neither divest 
those rights, nor destroy nor impair a title acquired under them ; 
for a grant is a contract executed. 

A State bankrupt or insolvent law, which discharges a debtor 
from all liability for any debt contracted before such law was passed, 
on his surrendering his property in the manner it prescribes, is 
void, as it impairs the obligation of the contract. It is not so as 
to a State law which provides for the discharge of a debtor from 
liability for debts contracted after the passing of the law ; though a 
discharge under it will not in general be a bar to an action brought 
by a citizen of another State in the courts thereof, or in a court of 
the United States. 

A State law which exempts the debtor from imprisonment only, 
is not considered as impairing the obligation of a contract, though 
at the time it was entered into he was liable to such imprisonment. 
Such laws have been enacted in the several States generally. The 
subject of bankrupt laws is referred to, above, under the proper 
head, in treating of the powers of Congress, f 

Statutes which merely change or affect the mode of action or 
recovery, or the method of remedy, on a contract, without destroy- 
ing the remedy altogether, are not unconstitutional. Statutes of 
limitation, limiting the time in which actions and suits at law can 
be brought, are valid ; unless they take away the remedy entirely. 
So confirmatory laws, which are intended to cure defects in form 
only, as to give to defective acknowledgments of deeds the same 
eflficacy as if they had origmally been made in proper form, or to 
establish titles rendered doubtful by the omission of some requisite 
in form, have been held by the Courts to be good. It is not un- 

(p) As to public and private corporations, see Part the Second, chap. ii. 

Ct) See above, chap. III., head Bankruptcy. 

11* 



126 POWERS PROHIBITED TO STATES. [PART I. 

constitutional to provide a new or adaitional remedy for a just riglit 
already in being, and which would be lost and destroyed if no re- 
medy were provided. 

The Constitution of the United States does not prohibit the 
several States from passing retrospective laws generally, but only 
^.x post facto laws. Hence the Supreme Court of the United States 
cannot pronounce an Act of a State legislature to be void, as con- 
trary to the Constitution, merely because such Act divests antece- 
dent rights of property. § 

Recording Acts, passed by State Legislatures, by which an 
elder grantee is postponed to a younger, if the prior deed is not 
recorded within a limited time, do not impair the obligation of 
contracts, whether the deed is dated before the passage of such 
Acts or not. ^ 

No new principle was adopted, in prohibiting the passage of a 
law by a State, which should impair the obligation of a contract: 
It was merely affirming a fundamental principle of law, and by 
putting contracts under the protection of the Constitution, securing 
the rights and property of the citizens from invasion by any power 
whatever. 

It is an important consideration that the principle was recognized 
and adopted by the Ordinance of Congress of 1787, as a part of 
that system of civil liberty which, in the language of the Ordinance, 
' ' formed the basis on which our republics, their laws and constitu- 
tions are erected, " and which was declared by it to be a fundamental 
law of all new States. The Ordinance provided, ' ' And in the just 
preservation of rights and property, it is understood and declared 
that no law ought ever to be made, or have force in the said terri- 
tory, that shall in any manner interfere with, or affect private con- 
tracts, or any agreements, bona fide, and without fraud, previously 
formed. ' ' 

15. There is not a like express prohibition, in the federal Con- 
stitution, on Congress. Congress has, however, no power to inter- 
fere with contracts, unless it be expressly granted to it. Congress 
is invested with this power in relation to bankruptcies, as an 
enumerated, not as an implied power ; and in no other form can it 
impair the obligation of a contract. 

' ' It seems that there is nothing in the federal Constitution which 
forbids Congress to pass laws violating the obligation ot contracts, 
though such power is denied to the several States." 1 Peters^ 
Reports, 33T. 

The provisions in the federal Constitution, ' ' N'or shall any person 

§ 8 Peters' Rep. 110 ; 1 Baldw. 74 ; 2 Peters' Rep. 414 ■ 11 Peters' Rep. 
411. 

"f 3 Peters' Rep. 280. 



CH, v.] POWERS PEOHIBITED TO STATES. 12T 

be deprived of life, liberty or property, without due process of law ; ' ' 
— " Nor shall private property be taken for public use, without 
just compensation," — {Amend. Art. V. ;) — "The right of the 
people to be secure in their persons, houses, papers and effects, 
against unreasonable searches and seizures, shall not be violated, ' ' 
(Amend. Art. IV. ;) maybe considered as embracing this principle.* 
There is a similar provision in the constitutions of the several 
States, in general. 

No ex post facto law. 

16. "No State shall pass — any ex post facto law. " Cons, of 
U. S. Art. I. Sect. X. 1. 

There is an explanation of terms given, with some remarks as to 
the application of the provision, in the preceding chapter of this 
work, (q) 

The federal Constitution contains a similar prohibition to Con- 
See Cons, of U. S. Art. I. Sect. IX. 3. 



No bills of attainder. 

IT. "No State shall — pass any bill of attainder. " Cons, of 
U. S. Art. I. Sect. X. 1. 

There is a like provision as to Congress, with respect to which 
some observations have been already made, (r) 

No title of nobility. 

18. No State shall — grant any title of nobility. Cons, of U. S. 
AH. I. Sect. X. 1. 

The federal Constitution forbids the granting of titles of nobility 
by the United States, and the receiving of any title, office, present 
or emolument, by an officer of the general government, from any 
king, prince or foreign State. Cons, of U. S. Art. I. Sect. IX. T. 

The Constitution of a State generally contains such a prohibition 
to its government. 

No duties on imports or exports. 

19. " No State shall, without the consent of Congress, lay any 
imposts or duties on imports or exports, except what may be abso- 
lutely necessary for executing its inspection laws ; and the nett 
produce of all duties and imposts laid by any State on imports or 
exports, shall be for the use of the Treasury of the United States ; 
and all such laws shall be subject to the revision and control of 
Congress, "(s) Cons, of U. S. Art. I. Sect. X. 2. 

* See Part I. chap. VII. 

(q) See, above, Chap. IV p. 120. (r) See above, Chap. IV. p. 119. 

(s) See explanation of terms above. Chapter III. p. 89 ; and as to the 
powers of the several States to lay taxes, see above. Chapter III. 



128 POWERS PROHIBITED TO STATES. [PART I. 

" No tax or duty shall be laid on articles exported from auy 
State." Cons, of U. S. Art I. Sect. IX. 5. 

2^0 duty on tonnage. 

20. "No State shaU, without the consent of Congress, lay any 
duty on tonnage." Cons, of U. S. Art. I. Sect. X. 2. 

Tonnage is the capacity of a ship or vessel, or the weight of 
goods carried by her, estimated per ton. 

Fugitives from service or labor. 

21. What is the provision of the federal Constitution as to 
fugitives from labour and service ? 

" No person held to service or labor in one State under the laws 
thereof, escaping into another, shall, in consequence of any law 
or regulation therein, be discharged from such service or labor, but 
shall be delivered up, on claim of the party to whom such service 
or labor may be due." Cons, of U. S. Art. lY, Sect. II, 3. 

The terms " held to labor or service" have been judicially con- 
strued to comprehend or mean slaves, (t) The course of proceeding 
for the arrest and recovery of fugitive slaves by their owners is 
directed by Act of Congress, of February 12, IT 93 ; which provides 
that when a person held to labor or service in any of the United 
States, or in either of the territories on the North-west or South 
of the river Ohio, under the laws thereof, shall escape into any 
other of the said States or territories, the person to whom such 
labor or service m-ay be due, his agent or attorney, is empowered 
to seize or arrest such fugitive, and to take him or her before any 
judge or District Court of the United States, residing or being 
within the State, or before any magistrate of a county, city or town 
corporate, where such seizure or arrest shall be made, and upon 
proof to the satisfaction of such judge or magistrate, either by oral 
testimony, or affidavit taken before and certified by a magistrate 
of any such State or territory, that the person so seized or arrested 
doth, under the laws of the State or territory from which he or she 
fled, owe service or labour to the person claiming him or her, it 
shall be the duty of such judge or magistrate to give a certificate 
thereof to such claimant, whic'h shaU be sufficient warrant for re- 
moving the said fugitive to the State or territory from which he or 
she fled. The Act of Congress, also, imposes a penalty upon any 
person knowingly and wilfully obstructing or hindering such claimant 
from seizing or removing his fugitive slave. 

State judges or magistrates are not compelled to exercise juris- 
diction under an Act of Congress ; but they may do so, if not pro- 
hibited by the laws of the State, (w) 

(t) See, above, chap. I. p. 66. 

(n) See Part I. chap. IX. title Judiciary, &c. 



CH. v.] POWERS PROHIBITED TO STATES, 129 

In some of the States there are Statutes providing that no judge, 
magistrate, sheriff, gaoler or other officer of the State shall take 
jurisdiction or act respectively under the Act of Congress of 1793; 
and forbidding the use of the gaols of the State for the detention 
of slaves. 

It has been decided, by the Supreme Court of the United States, 
that the Act of Congress of 1793, was constitutional, and passed 
in pursuance of an express provision of the Constitution of the 
United States ; that it excludes all State legislation on the same 
subject ; and that no State has a right by its own legislation to in- 
terfere with or impede the execution of any law of Congress on the 
subject of fugitive slaves. 16 Peters^ Reports, p. 559. This de- 
cision renders void all statute regulations by the several States on 
the subject, so far as they conflict with the Act of Congress. 

It has also been adjudged by the Supreme Court of the United 
States, that the owner may pursue and take his fugitive slave in 
another State without warrant ; that he may arrest him any where, 
and at any time, and that no one has a right to oppose the master, 
or demand proof of property. 1 Baldwin^ s Reports, p. 571, — 
16 Peters^ Reports, 539. 

The master only, or some one expressly authorized by him, can 
lawfully make such an arrest. 

The person arrested has, nevertheless, the right to a writ of 
habeas corpus, to be heard before a judge of the State, in which 
he is arrested, or before a federal judge ; before whom the question 
of ownership, agency, slavery and escape, may be investigated, and 
the allegations thereof must be proved. The ownership and slavery 
may be established by such evidence as the Act of Congress of 
1793 directs. 

It seems that a State law authorizing the arrest of an alleged 
fugitive slave, coming into the State in a vessel from another State, 
without the authority of the OAvner, is unconstitutional and void. 

The clause of the federal Constitution on this subject, and the 
Act of Congress, apply only to persons escaping or being fugitives 
from labor or service ; and if a slave be voluntarily brought, by his 
master, into a State where slavery does not exist by law, or comes 
there with the consent of his master, the slave becomes free, and 
cannot be compelled to return. 2 KenVs Comm. p. 257, note. 

Where a slave was canied by the owner to France, where slavery 
is not tolerated, and under the operation of whose laws the slave 
became immediately free, and was brought back to Louisiana, it 
was decided by the Courts in that State, that the slave having been 
free for one moment in France could not be reduced to the state 
of slavery again in Louisiana. 2 Rentes Comm. p. 258, in note. 

In some of the slave-holding States, it has been, decided in the 
Courts, that if a slave goes lawfully from such a State into a non- 



130 POWERS PROHIBITED TO STATES. [PART I. 

slave-holding State, and acquires a domicil there with his mastei-, 
or is emancipated there by his master, he becomes emancipated, 
and ceases to be a slave on his return. But if he be carried there 
by his master for a temporary purpose, and returns, his state of 
slavery remains. 2 Kent's Comm. p. 257, in note. 

In some of the States, where slavery does not exist, it was pro- 
vided by statute that persons sojourning in the State may keep their 
slaves there for a limited time ; as in Xew York for nine months, 
and in Pennsylvania for six months. ' ' These laws are acts of 
comity on the part of those States, and were not required by the 
Constitution of the United States, nor by the Act of Congress of 
Feb. 12th, 1193." 2 Kent's Comm. j:>.'25T, in note. 

The statutes containing these provisions, in the States mentioned, 
have been repealed. 

The Act of Congress, of February 12, 1T93, is not repugnant to 
the ordinance of IT 87, as to the States formed out of the territory 
North-west of the Ohio river, (l-) 

In 1850 was passed the Act of Congress entitled " An Act to 
amend, and supplementary to, the Act entitled ' An Act respecting 
fugitives from justice and persons escaping from the service of their 
masters,' approved February 12, 1793." By this Act of Congress, 
the Circuit Courts of the United States and the Superior Court in 
each organized territory of the United States are authorized to 
appoint commissioners, and are required ' ' from time to time to 
enlarge their number, with a view to reclaim fugitives from labor, 
and to the prompt discharge of the duties imposed by the Act ; ' ' 
the said commissioners to have concurrent jurisdiction, with the 
Circuit, District and Territorial Judges of the United States, and 
to ' ' grant certificates to such claimants, upon satisfactory proof 
being made, with authority to take and remove such fugitives, 
uBder the restrictions herein contained, to the State or Territory 
from -which such persons may have escaped or fled ;" all marshals 
and deputy marshals being requu'ed to obey and execute all war- 
rants and precepts issued under the Act ; any marshal or deputy 
on the escape of such a fugitive from his custody to be liable to the 
claimant for the full value of the service or labor of such fugitive ; 
the said commissioners being ' ' empowered to appoint, in writing 
under their hands, any one or more suitable persons, from time to 
time, to execute all such warrants and other process as may be 
issued by them, ' ' with authority to such commissioners or the per- 
sons appointed by them, to execute process as aforesaid, to summon 
and call to their aid the bystanders, or jyosse comitatus, of the 
proper county, when necessary to ensure a faithful observance of 

(v) See Jones vs. Vansant, 5 Howard's Eep. 215. Graves vs. The State, 
decided bj the Supreme Court of Indiana, 1849. 



CH. v.] POWERS PROHIBITED TO 6TATES. 131 

the clause of the Constitution referred to, in conformity with the 
provisions of this Act ; and all good citizens are hereby commanded 
to aid and assist in the prompt and efficient execution of this law, 
whenever their services may be required, as aforesaid, for that pur- 
pose. The Act provides that on the escape of any such fugitive 
into any other State or Territory, the person to whom his service 
or labor may be due, or tho attorney thereof, duly authorized by 
power of attorney in writing, may pursue such fugitive, either by 
procuring a warrant from any of the courts, judges or commissioners 
aforesaid, for the apprehension of such fugitive, or by seizing and 
arresting such fugitive, where the same can be done without process, 
and by taking, or causing such fugitive to be taken forthwith before 
such Court, judge or commissioner, whose duty it shall be to hear 
and determine the case of such claimant in a summary manner ; and 
upon satisfactory proof being made, by deposition or affidavit, in 
wi'iting, to be taken and certified by such Court, judge or commis- 
sioner, or by other satisfactory testimony, duly taken and certified 
by some court, magistrate, justice of the peace, or other legal officer 
authorized to administer an oath and to take depositions under the 
laws of the State or Territory from which such fugitive may have 
escaped, and with proof also by affidavit of the identity of the fugi- 
tive, that the person so arrested does owe service or labor to the 
claimant, and escaped — to deliver to such claimant, or the attorney 
thereof, a certificate setting forth the substantial facts of the case, 
with authority to such claimant, or the agent or attorney thereof, 
to use such reasonable force and restraint as may be necessary, 
under the circumstances of the case, to remove such fugitive back 
to the State or Territory whence he or she may have so escaped ; 
such certificate ' ' to be conclusive of the right of the person in 
whose favor granted to remove such fugitive to the State or Terri- 
tory from which he escaped, and shall prevent all molestation of 
such person or persons, by any process issued by any court, judge, 
magistrate or other person whomsoever." The Act provides that 
any person who shall obstruct or prevent such claimant, or his 
agent or assistant, from arresting such fugitive, or who shall rescue 
or attempt to rescue such fugitive ; or who shall aid or abet such 
fugitive to escape ; or who shall harbor or conceal such fugitive, 
so as to prevent his discovery and aiTest, after notice or knowledge 
of his owing service or labor as aforesaid, shall be subject to fine 
and imprisonment, and shall forfeit as civil damages to the party 
injured one thousand dollars. The Act provides that a commis- 
sioner shall be entitled to a fee of ten dollars in such a case, upon 
the delivery of a certificate as aforesaid, or to a fee of five dollars 
in a case where the proof shall not, in the opinion of the commis- 
sioner, warrant such a certificate. The Act provides that upon 
affidavit made by the claimant, or his agent, after such certificate. 



132 POWERS PROHIBITED TO STATES. [PART I. 

that lie lias reason to apprehend that the fugitive will be rescued 
by force, it shall be the duty of the officer making the arrest to 
retain the fugitive in his custody, and to remove him to the State 
whence he fled, and there to deliver him to the claimant or his 
agent ; the officer to employ so many persons as he may deem ne- 
cessary to overcome such force ; the officer and his assistants to 
be allowed their fees and expenses, as in criminal cases, to be paid 
out of the Treasury of the United States. The Act provides that 
proof of the service and labor being due, and of the escape, may 
be made before any court of record, or any judge thereof, of the 
State or Territory whence the fugitive escaped, and that the record 
of such proof, on its production before any such United States 
Court, judge or commissioner, shall be taken to be full and coiiclu- 
Bive ev>4eiic8 »>f the escape and ownership. 



CHAPTER VI. 

OF CERTAIN SPECIAL RIGHTS AND PRIVILEGES EXPRESSLY SECURED 
TO THE SEVERAL STATES, AND THE CITIZENS THEREOF, AND 
OP CERTAIN COVENANTS AND ENGAGEMENTS BETWEEN THEM, 
BY THE FEDERAL CONSTITUTION. 

1. There are certain special rights and privileges expressly 
granted and secured to each of the States, and the citizens thereof, 
by the federal Constitution, being the subjects of mutual covenants, 
concessions and grants, by the people of the several States, acting 
unitedly for their common benefit. 

In the order in which the general subject is here treated, these 
rights and privileges are considered as distinct from the reserved 
rights and powers of the several States. They are not those which 
are reserved and retained as originally possessed, but they are 
specially granted and superadded to the people of each State, by 
the Constitution. 

They regard, for the most part, the relations between the several 
States themselves and the people thereof ; though, in some instances, 
they refer to them as connected with the general government. 

2. The provisions of the federal Constitution relative to these 
rights and privileges are designed, with others, to promote the 
maintenance of harmony and proper intercourse amongst the States. 

3. There are thus obtained by the States severally, and the 
citizens thereof, certain privileges and benefits, not otherwise to be 
enjoyed, in regard to their particular municipal laws and regulations 
respectively. 

4. The people of each State have, under the federal Constitu- 
tion, parted with their power in relation to the subjects of some of 
these provisions, within the particular territory of the State, for the 
mutual benefit of the people of all the States. 

Public acts, records and judicial proceedings of each State. 

5. What is the provision of the federal Constitution ? 

" Full faith and credit shall be given in each State to the public 
acts, records and judicial proceedings of every other State. And 
the Congress may, by general laws, prescribe the manner in which 
such acts, records and judicial proceedings shall be proved, and 
the efl'ect thereof." Go7is. of U. S. Art. lY. Sect. I. 

6. There is an Act of Congress for carrying this provision into 
effect. 

12 133 



134 RIGHTS SECrr.ED TO STATES, ~ &C. [PART I. 

Congress, by the Act of May 26, 1790, provided the mode by 
which records and judicial proceedings should be authenticated, 
and declared that they should have such faith and credit given to 
them in every Court within the United States as they had by law 
or usage in the Courts of the State from whence the records were 
taken. 

PHvileges of citizens of each State in the others. 

7. What is the privilege of the citizens of each State in the 
several States ? 

The citizens of each State shall be entitled to all privileges and 
immunities of citizens in the several States. Cons, of U. S. Art. 
IV. Sect. II. 1. 

It has been decided that citizens of the District of Columbia are 
not citizens of a State, within the meaning of the word " State" 
in the Constitution of the United States, (a) So of citizens of a 
Territory. 

This provision of the Constitution does not refer to political pri- 
vileges, in the proper sense of the terms, but to those which are 
civil. It does not mean that a citizen of a State shall have the 
right to vote, or be elected to office, in another State. It has been 
ruled by the courts, that it secm-es to the citizens of all the other 
States the privilege of acquiring, holding and enjoying personal 
and real property, in a State, free from restrictions, taxes and 
burdens, to which the property of the citizens of the State is not 
liable.* And it must certainly include the protection of personal 
liberty, and the common personal civil rights. 

There has been a difference of opinion whether free colored per- 
sons are citizens, within this provision of the federal Constitution, f 

In Tennessee, it was adjudged by a Court of the State, that a 
State may constitutionally prohibit free persons of color from re- 
moving into the State to reside therein, on the ground that such 
persons are not citizens within the above constitutional provision, 
for they are not in any of the States entitled to all the privileges 
and immunities of citizens. 

Some of the Southern States having by their laws prohibited, 
or placed restrictions upon, the ingress and immigration of free 
colored persons into those States, subjecting them to imprisonment 
and other penalties upon entering therein ; and cases having oc- 
curred, in which free coloured persons from non-slave-holding 
States, inhabitants and citizens thereof, have been imprisoned and 
punished under those laws, their constitutionality has been de- 

(a) 2 Crancli, 445. Peters, C. C. Rep. 45. (h) 1 Wlieat. 91. 

* 3 Harr. & M'Hen. Rep. 554. 2 Munford, 308. 
7 See Part I. ch.. I. p. 51. 



CH. VT.] RIGHTS SECURED TO STATES, &C. 135 

nied, and much controversy between the States concerned has 
arisen therefrom. 

It would seem, that the question of citizenship, in this connec- 
tion, depends upon the laws and institutions of the State, of which 
the individual was an inhabitant and denizen at the time. 

As to fugitives from justice. 

8. This is the provision of the federal Constitution as to fugi- 
tives from justice : 

"A person charged in any State with treason, felony, or other 
crime, who shall flee from justice, and be found in another State, 
shall, on demand of the executive authority of the State from 
which he fled, be delivered up, to be removed to the State having 
jurisdiction of the crime." Cons, of U. S. Art. IV. sect. II. 2. 

9. The manner in which the demand and surrender are to be 
made is prescribed by Act of Congress. 

By the Act of Congress, of It 90, the executive of the State in 
which the offence was committed must make a demand, accom- 
panied with a certified copy of an indictment or affidavit of the 
committing of the offence, upon the executive of the State, where 
the offender has fled, who is authorized to cause him to be arrested, 
and surrendered to the agent of the executive making the demand. 
The law relative to the arrest of fugitive criminals from another 
State, and the forms of process in such cases, may be found in the 
American Magistrate, (1850,) and McKiuney's Justice. 

The delivery of fugitive criminals from foreign countries, for 
off'ences there committed, which is called their extradition, may 
properly be the subject of notice here. 

" It has sometimes been made a question, how far one nation 
was bound by the law of nations, independently of treaty, to sur- 
render, upon demand, fugitives from justice, who having com- 
mitted crimes in one country flee to another for shelter. It is de- 
clared by some of the most distinguished public jurists, that every 
State is bound to deny an asylum to criminals, and upon applica- 
tion and after due examination of the case, to surrender the fugi- 
tive to the foreign State where the crime was committed. The 
language of the authorities is clear and explicit, and the law and 
usage of nations as declared by them rest on the plainest princi- 
ples of justice. It is the duty of the government to surrender up 
fugitives upon demand, after the civil magistrate shall have ascer- 
tained reasonable grounds for the charge, and sufficient to put the 
accused upon his trial. The guilty party cannot be tried and 
punished by any other jurisdiction than the one whose laws have 
been violated, and, therefore, the duty of surrendering him ap- 
plies as well to the case of subjects of the State surrendering, as 
to the case of subjects of the power demanding the fugitive. The 



136 RIGHTS SECrRED TO STATES, &C. [PART I. 

only difficulty, ia the absence of positive agreement, consists in 
drawing the line between the class of offences to which the usage 
of nations does, and to which it does not apply ; inasmuch as it 
is understood in practice to apply to crimes of great atrocity, or 
deeply affecting the public safety." 

It appears that jurists have expressed doubts, and the decisions 
of courts, both in this country and in foreign countries, have been 
different, whether, upon principles of international law, and inde- 
pendent of treaty or statute, any court of justice is authorized to 
surrender a fugitive fi'om justice, (c) 

It would seem that the power to surrender a fugitive criminal 
to a foreign nation does not reside in any of the States of the 
Union ; that it belongs to the federal government, to be exercised 
by treaty, or other-ndse, as may be deemed most for the public in- 
terest in the regulation of our foreign intercourse, (d) 

The subject of the surrender of fugitive criminals has been made 
the matter of agreement, by treaties, between the government of 
the United States and several foreign nations ; as England, France. 

The statutes of New York authorize the Grovernor, in his dis- 
cretion, on a requisition from a foreign government, to surrender 
a fugitive charged with murder, forgery, larceny, or other crime ; 
which by the laws of the State of New York is punishable with 
death or imprisonment in the State penitentiary, (e) 

Fugitives from service or labor. 

10. The provision of the federal Constitution as to fugitives 
from labor or service, comes under this head. 

"No person held to labor or service in one State, under the 
laws thereof, escaping into another, shall, in consequence of any 
law or regulation therein, be discharged from such labor or ser- 
vice, but shall be delivered up, on claim of the party to whom 
such service or labor maybe due." Co7is. of U. S. Art. IV. 
Sect. II. 3. 

The Acts of Congress of 1793 and 1850 direct in what manner 
a fugitive from service or labor may be recovered in any State to 
which he may have fled. 

This subject is more fully considered, under the same head, in 
the next preceding chapter. 

Guaranty of a republican government, &g. 

11. " The United States shall guarantee to every State in this 

(c) Kent's Comm. 37. 3 Story's Conflict of Laws, p. 520, 522. 
\d) Opinion expressed by a majority oftlie Supreme Court of tlie U.S., 
14 Peters' Eep. 574. 1 Wheat. C. C. 434. 
{e) 1 Kent's Comm. p. 36, 37. 



Cir. VI.] RIGHTS SECURED TO STATES, &C. 13t 

Union a republican form of government." Cons, of U. S. Art. 
IV. sect. IV. 

Protection in each State against invasion. 

12. "The United States shall protect each of the States 
against invasion. " Cons, of U. S. Art. IV. Sect. IV. 

Congress has power, by the Constitution, to raise and support 
armies ; to provide and maintain a navy ; to provide for calling 
forth the militia, to execute the laws of the Union, suppress insur- 
rections, and repel invasions. The powers, and the exercise thereof, 
have been the subject of notice, under the proper heads, in the 
previous chapters of this work. (/) 

Protection against domestic violence. 

13. The United States shall protect each of them; "on the 
application of the Legislature, or of the Executive (when the Le- 
gislature cannot be convened) against domestic violence. " Cons, 
of U. S. Art. IV. Sect. IV. 

(f) See, above, Chapter III. 



12* 



CHAPTER YII. 

or CERTAIN GENIIRAIi PRINCIPLES AND DECLARATIONS OF RIGHT, ' 
CONTAINED IN THE FEDERAL CONSTITUTION. 

1. There are, in the Constitution of the United States, certain 
general principles and provisions restrictiye of the powers of the 
government, and declaratory of the liberty and rights of the people ; 
being applicable, also, in some instances, to the relations of the 
people to the governments of the several States. 

2. The rights of the people protected by these principles and 
provisions may be called and classed as the declared and perevip^ 
tory rights of the people, (a) 

3. The authority and force of these principles and provisions 
are such that they are binding on the general government, and the 
several State governments, in all the departments and branches 
thereof, and on the people generally. 

They are rules of construction, by which the federal Constitution 
is to be interpreted, and its meaning ascertained. And there cannot 
be any law of Congress passed, or any power exercised by the 
general government, in any of its branches, contrary to, or incon- 
sistent with them. 

4. Laws of the several States, or acts of their governments 
respectively, in any of their branches, which are contrary to those 
principles and provisions, are unconstitutional and void. 

Any part of the Constitution of a State which is repugnant to, 
or inconsistent wdth them, is void. 

5. There are provisions of this nature, in the federal Constitu- 
tion, in the class of powers called "powers prohibited, to the 
general government, and to the several States." 

6. These principles and provisions are contained principally 
in the amendments to the federal Constitution, which were adopted 
under its authority, to secure its limitations and protect the rights 
of the several States and the freedom of the people. They are 
founded on the great principles of civil and political liberty. 

T. There are similar provisions in the constitutions of the several 
States, being called Declarations or Bills of Rights, (b) There is 

(a) See Part tlie First, riap. I. par. 39. 

(b) See Part II, Cliap. III. 
138 



CU. Vn.] DECLARED RIGHTS OF THE PEOPLE. 139 

no formal Bill of Rights iu the federal Constitution, but there are 
provisions equivalent thereto incorporated in it. 

As to the writ of Habeas Corpus, (c) 

8. The important provision of the federal Constitution in regard 
to the privilege of tlie writ of habeas corpus may be properly first 
considered under this title. 

' ' The privilege of the writ of habeas corpus shall not be suspend- 
ed, unless when, in cases of rebellion or invasion, the pulslic safety 
may require it." Cons, of U. S. Art. I. Sect. IX. 2. 

As to trial by jury. 

9. The right of trial by jury is thus secured : 

" The ti'ial of all crimes, except in cases of impeachment, shall 
be by jury, and such trial shall be held in the State where such 
crime shall have been committed : but when not committed within 
any State, the trial shall be at such place or places as the Congress 
may bylaw have directed." Cons, of U. S. Art. III. Hect. II. 3. 

"In all criminal prosecutions, the accused shall have the right 
to a speedy and public trial, by an impartial jury of the State and 
district wherein the crime shall have been committed." Cons, of 
U. S. Amendments, Art. VI, The provision is applicable only to 
proceedings in the federal Courts, and under the laws of the United 
States. (d) 

' ' In suits at common law, when the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be preserved ; 
and no fact tried by a jury shall be otherwise examined in any 
Court of the United States, than according to the common law. " 
Cons, of U. S. Amendments, Art. YII. This provision does not 
apply to the States, but only to the United States, (e) 

There are similar provisions in the constitutions of the several 
States. (/) 

Security against unreasonable searches and seizures. 

10. The right of the people to be secure in their persons, houses, 
papers and effects, against unreasonable searches and seizures, shall 
not be violated. Cons, of U. S. Amendments, Art. IV. (d). 

The provision secures to all the protection of their persons and 
property from unlawful and unreasonable searches and seizures, 
arrests, or imprisonment, by the government or individuals, through 
color of law, or otherwise. 

(c) See above, chap. IV, par. 8. for au explanation of the terms, 

(d) 2 Cow. Kep. 815, 819. 

(e; 8 Weud. Rep. 85. 12 Conu. Rep. 243. 
(/) See Part II. Chap. III. 



140 DECLARED RIGHTS OF THE PEOPLE. [PART I. 

As to warrants. 

11. To this end, also, the federal Constitution regulates the 
issuing of warrants. 

' ' And no warrants shall issue but upon probable cause, sup- 
ported by oath or affirmation, and particularly describing the place 
to be searched, and the persons or things to be seized." Cons, 
of U. S. Amend. Art. lY. (d). 

This clause does not interfere with the operation of the common 
law, existing in some of the States, or of a statute authorizing the 
arrest, without process, by a civil officer, or other person, of a 
criminal found in the act of perpetrating an offence, on just suspi- 
cion thereof, or in order to prevent the commission of it. 

Trial on indictment of a grand jury. 

12. What is the provision of the federal Constitution as to this 
mode of trial ? 

' ' ^0 person shall be held to answer for a capital or otherwise 
infamous crime, unless on a presentment or indictment of a grand 
jury, except in cases arising in the land or naval forces, or in the 
militia, when in actual service, in time of war, or public danger. ' ' 
Cons, of U. S. Amendments, Art. Y. 

As to the rights of the accused. 

13. What provision is there in the federal Constitution as to 
the rights of the accused in criminal prosecutions ? 

' ' In all criminal prosecutions, the accused shall enjoy the right 
— to be informed of the nature and cause of the accusation ; to be 
confronted with the witnesses against him ; to have compulsory 
process for obtaining witnesses in his favor ; and to have the assist- 
ance of counsel for his defence." Cons, of U. S. Amendments, 
Art. YI. 

" Nor shall any person be subject, for the same offence, to be 
twice put in jeopardy of life or limb ; nor shall be compelled in any 
criminal case to be vritness against himself." Cons, of U. S. 
Amendments, Art. Y.(g) 

Protection by the process of law. 

14. The following provision of the federal Constitution secures 
to all the protection of the law, in every case. 

' ' Nor shall any person be deprived of life, liberty or property, 
without due process of law." Cons, of U. S. Amendments, 
Art. Y.(h) 

" No man shall be taken," "no man shall be disseized" without 

(^)See Part the Second, chap. III. (h) See Part II, chap. III. 



OH. Vn.] DECLARED RIGHTS OF THE PEOPLE. 141 

due process of law, is a principle taken from the Mag'na Charta of 
England, infused into our State constitutions, and is made inviolable 
by the federal government, by the amendments to the Constitution. 

As to excessive hail. 

15. The federal Constitution prohibits oppression and injustice 
in regard to the taking of bail. 

" Excessive bail shall not be required. " Cons, of TJ. S. Amend- 
ments, Art. VIII. (i) 

As to fines and punishments. 

16. " Excessive fines shall not be imposed ; nor cruel and unusual 
punishments inflicted. " Cons. ofU. S. Amendments, Art. YIII. 

The provision relative to excessive fines and cruel and unusual 
punishments does not extend to the State governments, but was 
intended only for the Legislature and Judiciary of the United 
States, (j) 

Security of private property. 

IT. " Nor shall private property be taken for public use without 
just compensation." Cons, of U. S. Amendments, Art. T. (^) 

This provision does not apply to the several States, but only to 
the United States. (I) It has been held by the courts that this 
principle exists, as applicable to all republican governments, inde- 
pendently of constitutions, (m) 

Hight to bear arms. 

18. "A well regulated militia being necessary to the security 
of a free State, the right of the people to keep and bear arms shall 
not be infringed. "(^) Cows. ofU. S. Amendments, Art. II. 

Quartering of soldiers. 

19. " No soldier shall, in time of peace, be quartered in any 
house without the consent of the owner ; nor in time of war, but in 
a manner to be prescribed by law." Cons, of U. S. Amend- 
ments, Art. III. 

(i) See Part II. chapter III. (j) 12 Serg. & R. 220 ; 3 Cow. 686. 

(k) See Part II. chapter IIL 

(I) 7 Peter's Rep. 243 ; 1 Baldw. 220 ; 8 Wend. 85. 

(m) 3 KeUy, 31. 



142 DECLARED RIGHTS OF THE PEOPLE. [PART I. 

Rights and poivers reserved to the States respectively or to the 
people. 

20. There are certain general provisions in the federal Consti- 
tution as to the rights and powers reserved to the States severally, 
and to the people. 

' ' The powers not delegated to the United States by the Consti- 
tution, nor prohibited by it to the States, are reserved to the States 
respectively, or to the people." Cons, of U. S. Amendments. 
Art. X. 

" The enumeration, in the Constitution, of certain rights, shall 
not be construed to deny or disparage others retained by the peo- 
ple. " Cons, of U. S. Amend.. Art. IX. 

"And nothing in this Constitution shall be so construed as to 
prejudice any claim of the United States, or of any particular State. " 
Cons, of U. S. Art. lY. Sect. III. 2. 

21. These are called the reserved powers and rights of the 
several States and of the people, because they are reserved or re- 
tained out of the powers conferred by the Constitution. Each State 
retains and possesses all the powers and rights not declared to be 
in the Union, nor prohibited to the State by the Constitution. 
They are not derived from the Constitution, by its grant, as their 
source ; but are to be regarded as originally possessed by the several 
States, and the people, in virtue of their inherent and sovereign 
authority, and excepted and retained out of the powers actually 
conferred by the Constitution. 

' ' The powers retained by the States, proceed from the people 
of the several States, and remain, after the adoption of the Consti- 
tution, what they were before, except so far as they may be abridged 
by that instrument. "(??) 

The States do not derive their powers from the Constitution, but 
by their own inherent reserved right can act on all subjects which 
have not been delegated to the federal government, or prohibited 
to the States. 

Many of the particulars of this chapter are more fully noticed, 
with explanations and references, in another part of this work, 
which treats of similar provisions in the constitutions of the several 
States (o) 

(n) Opinion of the Supreme Court of the U. S, 4 Wheat. Eep. p. 193. 
(o) See Part II, chapter III. 



CHAPTER VIII. 

PRESIDENT OF THE UNITED STATES. VICE PRESIDENT. EXECUTIVE 
OFFICERS OF THE UNITED STATES. 

1. " The executive power shall be vested in a President of the 
United States of America. " Gojis. of U. S. Art. II, Sect. I, 1. 

In the distribution of the powers of government, it is provided 
that there shall be a general executive department ; its organization, 
nature and offices being definitely and permanently determined. 

2. There is thus constituted a general executive department in 
one person. All its attributes are united in him ; and it is to be 
so regarded in its every relation, under the Constitution. It must 
necessarily, however, be administered, and its manifold and 
various operations be carried on, through subordinate divisions and 
agencies, (a) 

3. It is co-ordinate with the legislative and judicial departments, 
forming with them the general government. Deriving its powers 
directly from the people of the whole Union, under the Constitu- 
tion, it is distinct and independent, in its proper sphere, (b) 

4. The department has for its objects, the discharge of certain 
functions assigned by the Constitution, and, in general, to execute 
the laws of the United States. Though its duties are mainly execu- 
tive, it has an intimate connexion with the other departments of 
the government, and exercises important qualified powers in refer- 
ence to them, their acts and proceedings. 

Like the other departments of the government, its powers are 
defined and limited, being those only which are expressly vested in 
it by the Constitution, or which incidently arise from those so de- 
clared, or belong essentially to the nature of its specified duties. 

The President is possessed of only enumerated powers ; the 
executive powers being defined by the Constitution, as are the le- 
gislative and judicial powers of the government. The name or 
style given to the office imports of itself no power. 

5. The President is otherwise called the Executive, or Chief 
Executive Magistrate of the United States. There is no title given 
to him by the Constitution or law. The term Excellency is applied 
to him from courtesy or etiquette. 

6. The President, though possessed of only prescribed and 
limited authority, may, from the position he occupies in reference 

(a) See Part I chap. III. (b) See t'ui'ther on in this chapter. 

143 



144 PRESIDENT OP THE UNITED STATES. [PART I. 

to the other departments of the government, and from the peculiar 
nature of the powers conferred upon him, be considered the repre- 
sentative and official organ of the nation, in its correspondence, 
negotiations and acts with foreign countries, and in regard to its 
affairs in general, to be conducted and transacted in accordance 
with the Constitution and laws. 

I. The President is elected by the whole people of the Union ; 
the prerequisite qualifications for the office, the mode of election, 
and the duration of the office, being so constitutionally prescribed, 
as to be best calculated to secure in him the proper representation 
of the will of the people, in regard to the manner in which he is to 
discharge the important duties devolving upon him, and as they 
may affect the varied interests of the country. 

Qualifications for the office of President. 

8. '' 1^0 person except a natural born citizen, or a citizen of the 
United States at the time of the adoption of this Constitution, shall 
be eligible to the office of President ; neither shall any person be 
eligible to that office who shall not have attained to the age of 
thirty-five years, and been fourteen years a resident within the 
United States." Cons, of U. S. Art. II, Sect I, 5. 

Mode of election. 

9. The President of the United States is elected by electors 
chosen by the people. They are called Presidential electors. 

Each State appoints a number of electors, equal to the whole 
number of Senators and Representatives in Congress to which it 
may be entitled. 

As to the prerequisite qualifications of the electors, it is provided, 
' ' No Senator or Representative, or person holding an office of trust 
or profit under the United States, shall be appointed an elector. ' ' 
Cons, of U. S. Art. II, Sect. I, 2. 

10. As to the manner of appointing them, it is declared : ' ' Each 
State shall appoint, in such manner as the Legislature thereof may 
direct, the number of electors" to which it is entitled. Cons, of 
U. S. Art. II. Sect. I. 2. 

The actual mode of appointing electors of President, adopted by 
the States respectively, is diverse in the different States ; being, 
either by the Legislature of the State ; by the people in districts ; 
or by the people in the State at large, by general ticket. 

II. Congress has power to determine the time of choosing the 
electors, and the day on which they shall give their votes, which 
day shall be the same throughout the United States. Cons, of 
U. S. Art. II. Sect. I. 4. 

The electors are to be chosen on the Tuesday next following the 
first Monday in November, throughout the United States ; the time 



CH. vrrr.] president of the united states. 145 

directed by the Act of Congress of 1845. Formerh' the several 
States were authorized to fix the days for choosing the electors 
within the States respectively, within thirty-four days preceding 
the first Wednesday in December, by Act of Congress of 1792; 
and different days were fixed for the purpose. When there shall 
be no choice on that day, electors may be appointed in such manner 
as the State may by law provide. 

12. The electors are to give their votes on the first Wednes- 
day in December, as determined by the Act of Congress of 1845. 

The electors of President are to meet for the purpose of giving 
their votes in their respective States, as provided by the laws thereof. 

Electoral colleges are the Presidential electors, met in their re- 
spective States, for the purpose of giving their votes. 

Each State may provide by law for filling vacancies in its college 
of electors. 

13. The electors in each State are to vote by ballots for Presi- 
dent, and by distinct ballots for Yice President, of the United 
States ; one of whom, at least, shall not be an inhabitant of the 
same State with themselves. Cons, of U. S. Amend. Art. XII. 

14. The result of their votes is to be declared in this manner : 
— Certified lists of the persons voted for in the several colleges of 
electors are to be transmitted to the President of the Senate of the 
United States, who shall, in the presence of the Senate and House 
of Representatives of the United States, open all the certificates, 
and the votes shall be counted. 

The majority of the votes of the whole number of electors in the 
several States is necessary to elect a President. 

15. If no person have a majority of the votes of the whole 
number of electors, the House of Representatives of the United 
States is to elect a President from the three persons having the 
highest number of votes of the electors ; the votes of the Repre- 
sentatives to be taken by States ; and a majority of all the States 
to be necessary to a choice. 

16. The following is the provision of the federal Constitution 
as to the mode of election of President, by the electors, or by the 
House of Representatives of the United States : 

' ' The electors shall meet in their respective States, and vote by 
ballot for President and Vice President, one of whom, at least, 
shall not be an inhabitant of the same State with themselves ; they 
shall name in their ballots the persons voted for as President, and 
in distinct ballots the person voted for as Vice President ; and they 
shall make distinct lists, of all persons voted for as President, and 
of all persons voted for as Vice President, and of the number of 
votes for each ; which lists they shall sign and certify, and transmit, 
sealed, to the seat of government of the United States, directed to 
the President of the Senate : the President of the Senate shall, in 

13 



146 PRESIDENT or THE UMTED STATES. LPAET I. 

the presence of the Senate and House of Representatives, open all 
the certificates, and the votes shall then be counted ; the person 
having the greatest number of votes for President shall be the Pre- 
sident if such number be a majority of the whole number of electors 
appointed. And if no person have such majority, then from the 
persons having the highest number, not exceeding three, on the list 
of those voted for as President, the House of Representatives shall 
choose immediately, by ballot, the President ; but in choosing the 
President the votes shall be taken by States, the representation 
from each State having one vote ; a cj[Uorum for this purpose shall 
consist of a member or members from two-thirds of the States, and 
a majority of all the States shall be necessary to a choice. " Cons, 
of U. S. Ainendments, Art. XII. 

IT. If the choice devolve upon the House of Representatives, 
and they fail to make a choice before the 4th of March next fol- 
lowing, the Tice President is to act as President. Cons, of XJ. S. 
Amendments, Art. XII. (c) 

A Vice President may be elected, or chosen by the Secate, as 
above provided, before an election or choice of President. 

18. The day fixed by Act of Congress for opening and counting 
the votes of the electors, and, in case of its being necessary, for the 
election of President by the House of Representatives, and of Yiee 
President by the Senate of the United States, is the second "Wed- 
nesday in February, after the appointment of electors. 

19. There is no constitutional provision for the case where there 
is neither a President or Vice President elected or chosen, in the 
manner oirected by the Constitution. The Act of Congress of 
1792 provides that, under such circum.stanees there shall be anew 
election, (a) 

Duration of o;ffice. 

20. What is the term of office of the President of the United 
States ? 

Four years ; commencing the fourth day of March after his elec- 
tion. This commencement of the term is provided by Act of Con- 
gress, and recognized by the Xllth Art. of the Amendments to 
the Constitution of the ITnited States. 

The seventeenth Presidential term commenced the for.rth day 
of March in the year 1853. 

Re-election. 

21. A person may be re-elected President of the United States 
for any number of terms of ofl&ce successively, under the Constitu- 

(c) See head Vice President of the United States, chap. YIII. 
[^d") See, in this chapter, § 56. 



CH. VIII. J PRESIDENT OF THE UNITED STATES. Ii7 

tioii. From the commencement of the government, liovvever, all 
the Presidents who have served a second term in the office, have 
declined a further re-election ; a practice which seems now to be 
permanently established. 

Oath of office. 

22. The oath of office of the President is : 

" I do solemnly swear (or affirm) that I will faithfully execute 
the office of President of the United States, and will, to the best 
of my ability, preserve, protect and defend the Constitution of the 
United States." Cons, of U. S. Art. II. Sect. I. 8. 

Go7npensation. 

23. There is a provision in the federal Constitution as to the 
compensation of the President of the United States. 

" The President shall, at stated times, receive for his services a 
compensation, which shall be neither increased nor diminished 
during the period for which he shall have been elected ; and he 
shall not receive, within that period, any other emolument from 
the United States, or any of them." Cons, of U. S. Art. II. 
Sect. I. 1. 

24. The compensation which the President receives is twenty- 
five thousand dollai's per year, by Act of Congress. 

Power as to the army and navy. 

25. The power of the President as to the army and navy of 
the United States, is declared by the Constitution : 

' ' The President shall be commander-in-chief of the Army and 
Navy of the United States, and of the militia of the several States 
when called into the actual service of the United States. " Cons 
of U. S. Art. II. Sect. II. 1. 

Foxver as to the militia. 

26. By Act of Congress of 1795, the President is authorized to 
call forth the militia, to execute the laws of the Union, suppress 
insurrections, and repel invasions, f 

The President is to be the exclusive judge as to when these 
exigencies arise, on the occurrence of which the militia may be 
called forth. The Supreme Court of the United States has decided 
that the President is the sole and exclusive judge. 

21. The militia is not to be considered as "in the service of 
the United States" until they have reached the place of rendezvous 
in pursuance of the call of the President ; before which they are 
under the orders of the State governments respectively ; as adjudged 
by the Supreme Court of the United States. 

t See under the head "Congress, &c." as to the militia, p. 



148 PRESIDENT OF THE UNITED STATES. [PAET I. 

Consulting power. 

28. The President may require the opinions of the heads of the 
Executive Departments on matters appertaining to their offices 
respectively. 

' ' He may require the opinion," in writing, of the principal officer 
in each of the Executive Departments, on any subject relating to 
the duties of their respective offices." Cons, of U. S. Art. II. 
Sect. II. 1. 

29. The President and heads of Departments constitute what 
is called the cabinet of the government of the United States. The 
President often summons these officers to a meeting with him, for 
consultation, which is called a cabinet council. 

Power of pardon. 

30. ' ' He shall have power to gi'ant reprieves and pardons for 
offences against the United States, except in cases of impeachment. " 
Cons, of U. S. Art. II. Sect. II. 1. 

31. He may grant pardons for such offences before, as well as 
after conviction therefor. 

Power as to treaties, 

32. ' ' He shall have power, by and with the advice and consent 
of the Senate, to make treaties, provided two-thirds of the Sena- 
tors present concur." Cons, of U. S. Art. II. Sect. II. 2. 

33. Treaties § with foreign countries, if made abroad, are nego- 
tiated on the part of the United States by ministers appointed by 
the President (with the advice and consent of the Senate), and 
who act under his instructions ; and if made in this country, they 
are negotiated between the Secretary of State, under the like in- 
structions, and ministers accredited from foreign governments. 
When the terms of a treaty are agreed upon by the ministers, pleni- 
potentiaries, or agents employed for that puri^ose, and approved 
by the President, he submits it to the Senate. The Senate acts 
upon it, separately and independently ; the President not partici- 
pating in their deliberations, but rendering them from time to time 
such information relative to it as they may require. The Senate 
may wholly approve or reject the treaty ; or they may ratify a part ; 
or they may recommend additional or explanatory articles, which, 
if the President approve, may become the subject of farther nego- 
tiation with the foreign power ; and when the whole is agreed to 
on the other part, and receives the sanction of the Senate, the 
ratifications are exchanged between the respective governments, 
and the treaty becomes obligatory upon both nations. 

§ See Part II. cliapter II. t>. 



OH. Vni.] PRESIDENT OF THE UNITED STATES. 149 

34. "All treaties made, or wliich shall be made, under the 
authority of the United States, shall be the supreme law of the 
land." Cons, of U. S. Art. YI. 2. 

The several States are prohibited from making treaties. 

"No State shall enter into any treaty, alliance or confederation. " 
Cons, of U. S. Art. I. Sect. X. 1. 

"No State shall, without the consent of Congress, enter into 
any agreement or compact with another State, or with a foreign 
power. ' ' Cons, of U. S. Art. I. Sect. X. 2. 

Power of appointment. 

35. What power has the President to make appointments to 
office ? 

" The President shall nominate, and, by and with the advice and 
consent of the Senate, shall appoint ambassadors, other public 
ministers and consuls, judges of the Supreme Court, and all other 
officers of the United States, whose appointments are not herein 
otherwise provided for, and which shall be established by law. But 
the Congress may, by law, vest the appointment of such inferior 
officers, as they think proper, in the President alone, in the courts 
of law, or in the heads of departments." Cons, of U. S. Art. 
II. Sect. II. 2. 

The President thus nominates officers, by proposing their names 
to the Senate, in order to their being appointed. The Senate may 
approve or disapprove of their being appointed. It approves by 
passing a resolution that it advises and consents that the President 
shall appoint a particular person named as nominated, after which 
he may be appointed and commissioned by the President. If the 
Senate refuse to pass such a resolution, or declare in the same 
manner its disapprobation and dissent, the person nominated is 
said to be rejected by the Senate, and cannot be appointed, ((i) 
The Senate has no power to act on any appointment made, or in- 
tended, by the President, except on a nomination so presented by 
him. 

The Senate cannot nominate or appoint a person instead of the 
one nominated by the President, and rejected by it. 

The President may withdraw a nomination made by him to the 
Senate. He may, also, withdraw an appointment and commission 
from the nominee, even after the nomination has been approved by 
the Senate and its consent given to the making of the appointment. 

An appointment to an office is not complete until a commission 
therefor has been regularly made and executed. An actual delivery 
of the commission to the person appointed is not, however, abso- 
lutely necessary. 

(d) See, above, chap. III. title Senate, &c. 
13* 



150 PRESIDENT or THE UNITED STATES. [PART I. 

36. There is no restriction on the President as to the persons 
whom he may nominate to office. He may, therefore, renew a 
nomination which the Senate has rejected. 

3Y. The President commissions all officers of the United States. 

' ' He shall commission all the officers of the United States. ' ' 
Cons, of U. S. Art II. Sect. III. 

And this includes all such officers, whether appointed by him 
or not. 

38. " The President shall have power to fill up all vacancies that 
may happen during the recess of the Senate, by granting commis- 
sions, which shaE expire at the end of their next session." CGn!<. 
of U. S. Art. II. Sect. II. 3. 

It has been doubted whether, where a person has been commis- 
sioned by the President, under this provision of the Constitution, 
and at the next session the Senate has not advised and consented 
to the appointment, the President can afterwards thus commission 
him again until the end of the following session of the Senate. In 
practice, the President has exercised this power, it being considered 
that a vacancy has happened. 

Where an office has been created by Act of Congress which is 
not filled during the existing session of Congress, or of the Senate, 
the President cannot make an appointment to the office during the 
recess of the Senate, unless special authority therefor is given to 
him by the Act. It is not the case of a vacancy happening during 
the recess of the Senate. 

39. The President has not power to create offices, and make 
appointments to them. It is implied by the constitutional provision 
that the offices to which he may make appointments, shall be ex- 
isting ones, under the Constitution, or the laws of the United 
States. 

40. The President alone has power to remove officers, in gene- 
ral, who were appointed by him, whether such appointments were 
with the advice and consent of the Senate, or otherwise. 

The power of removal has not been expressly given by the federal 
Constitution to the President ; the general opinion, however, has 
been that it is necessarily implied in the power of appointment, 
v.here the contrary is not provided in terms ; and the practice has 
])een in conformity thereto. 

The President has, thus, the power of creating vacancies and 
;ippointing officers to fill them. Officers so appointed in the recess 
of the Senate, continue in office until the next session of Congress. 

41. There are no officers of the United States who hold their 
offices for life, during good behaviour, except judicial officers, who 
can be removed only by impeachment. 

42. All officers of the United States, appointed by him, by and 
with the advice and consent of the Senate, hold their offices at the 



I 



CH. Vm.] PRESIDENT OF THE UNITED STATES. 151 

will of the President, as to their removal by him, except where it 
is otherwise provided by the Constitution. This is so, under the 
construction and practice above stated. 

43. With regard to all offices, the appointment to which is 
confided to the President by the federal Constitution, Congress 
cannot give any duration of office which is not subject to his power 
of removal. 

44. Under the power of Congress as to the appointment of 
" inferior officers, " it may prescribe the term of office, and the 
manner in which the removal, as well as the appointment, shall be 
made.* Cons, of U. S. Art. II. Sect. II. 2. 

Power as to legislation. 

45. The President has, by the Constitution, certain powers as 
to bills passed by Congress, and, in consequence, in regard to the 
legislation of the government. 

He has the power of approving or disapproving of every bill, 
and joint order, resolution or vote, passed by Congress, (except on 
a question of adjournment); if approved and signed by him, it be- 
comes a law ; if not approved by him, it can only become a law by 
being reconsidered and repassed by two-thirds of both Houses of 
Congress in the manner prescribed by the federal Constitution, (e) 

46. The President's power of disapproving such a bill is called 
his veto power. The word veto means ' ' I forbid. ' ' 

Power to convene Congress. 

47. "He may, on extraordinary occasions, convene both 
Houses of Congress, or either of them." Cons, of U. S. Art. 
II. Sect. Ill.(f) 

Power to adjourn Congress. 

48. What power has the President as to adjourning Congress ? 
" He may — in case of disagreement between them" (the two 

Houses of Congress) "adjourn them to such time as he shall see 
proper." Cons, of U. S. Art. II. sect. III.(/) 

Communications to Congress. 

49. What is the duty of the President as to giving information 
to Congress of the state of the Union ? 

' ' He shall, from time to time, give to Congress information of 

* See further on in this chapter, head " Executive Officers, &c." par. 69. 
(, e) See more fully under the title Congress of the United States, above, 
chapter III. 

(/) See above, chapter III. 



152 PRESIDENT OF THE UNITED STATES. [PART I. 

the state of tlie Union, and recommend to their consideration such 
measures as he shall judge necessary and expedient." Cons, of 
U. S. Art. II. Sect. III. 

The President is not obliged to communicate to Congress, or to 
make public, his official proceedings, or the papers or documents 
in his possession, when he deems it inexpedient for the country so 
to do. 

The messages of the President are his written communications 
to Congress, or to each House thereof, at any time. It is usual for 
the President to send a general message to Congress at the com- 
mencement of each session thereof, giving a statement of the trans- 
actions and affairs of the government, of its relations with foreign 
nations, and of the state of the country during the preceding year, 
and recommending to Congress such measures or subjects of legis- 
lation as he deems expedient. 

Reception of ambassadors and ministers, {g) 

50. The Constitution vests in the President express powers in 
this respect. 

" He shall receive ambassadors and other public ministers." 
Cons, of U. S. Art. 11. Sect. III. 

It is meant, by this provision, that he is authorized to acknow- 
ledge as such, ministers and ambassadors sent by other nations to 
this government. 

Execution of the laics. 

51. The general duty of the President in regard to the execution 
of the laws, is declared by the Constitution. 

' ' He shall take care that the laws be faithfully executed. ' ' Cons, 
of U. S. Art. II. Sect. III. 

52. This clause of the federal Constitution does not confer on 
the President any specific power not otherwise vested in him. 

Impeachment of the President. 

53. What is the provision of the federal Constitution as to the 
impeachment of the President of the United States ? 

' ' The President, Yice President and aU civil officers of the 
United States, shall be removed from office on impeachment for, 
and conviction of treason, bribery, or other high crimes and misde- 
meanors, "(/i) Cons, of U. S. Art. II. Sect. IV. 

(g) See explanations and observations further on in tliis cliapter. 
(li) See, above, as to Impeachments, imder the head " Senate of the 
United States," chapter III. 



I 



CH. Vin,] VICE PRESIDENT OF THE UNITED STATES. 153 

Vacancy in the office. 

54. The Constitution directs how any vacancy in the office of 
President is to be supplied. 

' ' In the case of the removal of the President from office, or of 
his death, resignation, or inability to discharge the duties of the said 
office, the same shall devolve on the Yice President ; and the Con- 
gress may, by law, provide for the case of the removal, death, re- 
signation, or inability, both of the President and Yice President, 
declaring what officer shall then act as President, and such officer 
shall act accordingly, until the disability be removed, or a President 
be elected." Cons, of U. S. Art. II. Sect. I. 6. 

On the occurrence of any of the emergencies mentioned in this 
clause of the Constitution, the person upon whom the duties of the 
office devolve, becomes the President of the United States, to hold 
the office during the time specified. In one instance, on the death 
of a President, a few months after his inauguration, the then Vice 
President immediately became the President, and had vested in 
him all the powers of the office during the unexpired time of its 
regular term. The circumstances of the case illustrated most clearly 
the adaptness of our Constitution for the greatest emergencies con- 
templated by it, and the facility with which the most important 
operations of the government are carried on. 

55. The Act of Congress of 1192 provides, that in ease also 
of such a vacancy of the office of Vice President, the President 
pro tempore, of the Senate first, and then the Speaker of the 
House of Representatives of the United States, shall act as Presi- 
dent. 

56. Provision is made, also, for the case of a failure to elect 
or choose either a President or Vice President of the United States. 

The Act of Congress has provided that there shall be a new 
election of these officers, in such an event. There are doubts en- 
tertained whether Congress has constitutional power to make such 
a provision, (i) 

Personal relations. 

The incumbent of the office of President, regarded as a person 
separate from his official authority and duty, is merely a private 
citizen, subject to the obligations and duties of a citizen under the 
laws of the country. 

VICE PRESIDENT OP THE UNITED STATES. 

5T. The Constitution provides for the existence, in the govern- 
ment, of a Vice President of the United States, with declared 
powers, some of which to be exercised certainly, and others contin- 
gently. 

(i) See above, in tliis Ch.apter, § 19. 



154 VICE PRESIDENT OF THE UNITED STATES. [PART I, 

It is directed that lie shall be elected by electors chosen by the 
people, in the same manner as the President ; or in case of the 
failure of the people so to elect, that he shall be chosen by the Se- 
nate of the United States, from the two highest on the list of per- 
sons voted for by the electors. Cons, of U. S. Art. II. Sect. I. 
and Amendments, Art. XII. The election of the President and 
Vice President is particularly treated of in the preyious part of this 
chapter. 

58. The prerequisite qualifications for the office of Yice Presi- 
dent are declared by the Constitution. 

' ' No person constitutionally ineligible to the office of President, 
shall be eligible to that of Vice President of the United States." 
Cons, of U. S. Amend. Art. XII. 

59. The term of office of the Vice President is four years, com- 
mencing from the fourth day of March after his election. It is the 
same as that of the President. 

60. His compensation is eight thousand dollars per year, as 
fixed by Act of Congress There is no constitutional provision 
determining it. 

61. " The Vice President of the United States shall be the Pre- 
sident of the Senate, but shall have no vote, unless they be equallv 
divided." Cons. ofU. S. Art. I. Sect. III. 4.0') 

62. The office of President of the United States may devolve 
upon the Vice President, in certain cases. 

' ' In the case of the removal of the President fi'om office, or of 
his death, resignation, or inability to discharge the powers and 
duties of the said office, the same shall devolve upon the Vice Presi- 
dent, "(yfc) Cons, of U. S. Art. II. Sect. I. 6. 

' ' And if the House of Representatives shall not choose a Presi- 
dent, whenever the right of choice devolves upon them, before the 
fourth day of March next following, then the Vice President shall 
act as President, as in the case of the death or other constitutional 
disability of the President." Cons, of U. S. Amend. Art. XII. 

63. The Constitution provides that the Vice President may be 
impeached, and in what manner. Cons, of U. S. Art. II. Sect. 
IV. See above, in this chapter, par. 53, and chapter III. head 
Impeachment. 

64. What provision is made by law for the case of a failure to 
elect or choose either a President or a Vice President, in the man- 
ner prescribed by the Constitution ? 

The Act of Congress of 1192 provides that there shall be a new 
election. (/) 

[j) See Senate of tte United States, above, Chapter III. 

(Jc)As to the provision in the case of the removal, death, &c. of both the 
President and Vice President, see this chapter, head " President," p. 153. 

(I) See title " President,'' in this chapter, p. 153. 



CH. Vm.] EXECUTIVE OFFICERS OF THE UNITED STATES. 155 

It is usual for the Vice President to withdraw from the Senate* 
previously to the adjournment of the session, in order to afford an 
opportunity to that body to choose a President pro tempore ; so 
that there may be such an officer during the recess of the Senate. 

If the Vice President succeed to the office of President, he con- 
tinues in it until the expiration of the term for which the President 
was elected ; unless in case of a temporary disability of the Presi- 
]Jent. 

In case of a vacancy in the office of Vice President only, by 
resignation, death, removal or disability, a Vice President cannot 
be elected until the regular period. There is no provision in the 
Constitution for such an election. 

In case of vacancies in the offices both of President and Vice 
President, by removal, death, resignation or inability, the person 
appointed by Act of Congress continues to act as President until 
the disability be removed, or a new election of President ; provision 
for holding such election being made by Congress. The Act of 
Congress also provides that, where there has been a failure to elect, 
in the manner prescribed by the Constitution, either a President or 
Vice President, a new election shall be held for those officers before 
the regular period ; the person appointed by law continuing to act 
as President in the mean time. See, in this chapter, § 54-6. 



EXECUTIVE OFFICERS OF THE UNITED STATES. 

65. The officers of the general government may be classed or 
divided, as judicial(Hi) or executive ; and the executive as civil 
or military. 

66. Offices held under the United States are created either by 
the federal Constitution, or Acts of Congress. Offices not created 
by the Constitution can be established only by Acts of Congress, 
passed in accordance with the Constitution. 

Ai^pointment and removal. 

6T. The subordinate executive officers of the United States are 
appointed, as it is directed by the federal Constitution. 

The President of the United States ' ' shall nominate, and by and 
with the advice and consent of the Senate, shall appoint ambassa- 
dors, other public ministers and consuls, judges of the Supreme 
Court, and other officers of the United States, whose appointments 
are not herein otherwise provided for, and which shall be established 
by law. But the Congress may, by law, vest the appointment of 
such inferior officers, as they think proper, in the President alone, 

(m) See Judiciary of the UuiteJ States, further on, Part I. Chap. IX. 



156 EXECUTIVE OFPICEKS Oj? THE UNITED STATES. [PART I. 

in the Courts of law, or in the heads of departments. " Cons, of 
U. S. Art II. Sect II. 2. 

' ' The President shall have power to fiU up all vacancies that 
may happen during the recess of the Senate by granting commis- 
sions which shall expire at the end of their next session." Cons, 
of U. S. Art II. Sect 11. 3. 

68. Executive officers, appointed by the President, whether 
with the advice and consent of the Senate, or otherwise, are, in 
general, liable to be removed from office at his pleasure or discre- 
tion. They hold theii' offices at his will 

69. In those cases, however, in which Congress, agreeably to 
the Constitution, vests the ajDpointment of "inferior officers" in 
the President alone, in the courts of law, or in the heads of depart- 
ments, Congress may provide that the persons so appointed shall 
hold their offices for certain terms of year, not removable at the 
will of the appointing power. When Congress so provides for the 
appointment of such officers, it may direct in what manner the 
appointments shall be madcf 

TO. The power of appointment vested, by the Constitution, in 
the President, cannot be interfered with by Act of Congress ; and 
it is so with respect to the power of removal from office, incident 
to that of appointment Offices may be created by Acts of Con- 
gress, but the appointments thereto cannot be provided for other- 
wise than as authorized by the Constitution. 

Commissions. 

11. The Constitution provides that the President "shall com- 
mission all officers of the United States. " Cons, of U. S. Art II. 
Sect III. 

12. Where a commission for an officer, who does not hold his 
office at the will of the President, is signed by the President and 
transmitted to the Secretary of State, to be sealed and recorded, 
it is irrevocable ; the appointment is complete ; and the Secretary 
cannot withhold the commission from the officer, though directed 
so to do by the President. 

A commission is not the appointment, but only evidence of it ; 
and a delivery of the commission is not necessary to constitute the 
appointment. 

Meligious tests. 

73. " ISTo religious test shall ever be required as a qualification 
to any office, or public trust, under the United States." Cons, 
of U. S. Art VI. 3. 

t See tlie remarks on this subject under the head " President of the 
United States," above, in this chapter, par. 44, & pp, 179, 180. 



CU. VIll.J EXECUTIVE OFFICERS OF THE L'NITED STATES, 15 » 

Oaths off office. 

74. " And all executive and judicial officers, both of the United 
States and of the several States, shall be bound, by oath or affirma- 
tion, to support this Constitution." Cons, of U. S. Art YI. 3, 

Imjyeachment. («,) 

75. What is the provision of the federal Constitution as to the 
impeachment of officers of the United States ? 

"The President, Vice President, and all civil officers of the 
United States shall be removed from office on impeachment for, 
and conviction of, treason, bribery, or other high crimes and mis- 
demeanors. " Cons. ofU. S. Art. II. Sect. IV. 

By civil officers, in this provision, are meant all public officers, 
except military and naval officers, and members of Congress, 

Executive Departments. 

76. What subordinate executive departments of the general 
government are there ? 

The principal departments are, the Department of State, the 
principal officer of which is the Seci*etary of State ; the Department 
of the Treasuiy, under the Secretary of the Treasury ; the Depart- 
ment of War, under the Secretary of War ; the Department of the 
Navy, under the Secretary of the Navy ; and the Post Office De- 
partment, under the Post Master General ; and the Department of 
the Interior, under the Secretary thereof. These officers are called 
the Heads of Departments, 

77. The Secretaries of Departments and the Post Master 
Greneral are appointed by the President, with the advice and con- 
sent of the Senate of the United States ; and they are removable 
by him at his pleasure. In case of a vacancy, the President may 
authorize any person to perform the duties of Head of Department 
until a successor be appointed, or such vacancy be filled. 

78. The Secretaries of Departments and the Attorney General(o) 
constitute what is called the cabinet of the President of the United 
States. They are his constitutional advisers, (p) 

79. Neither of the Secretaries or Heads of Departments haa a 
seat in Congress, Their powers and duties are only executive, 
defined by Acts of Congress. 

80. These Departments are recognized in the federal Consti- 
tution, and are established, and their powers and duties defined, by 

(n) On impeachments generally, see title Senate of the United States, 
head Impeachments. 

(o) As to the Attorney Greneral, see Judiciary of the United States , Part 
1. chapter IX. 
(p) See, above, p. 100. 

14 



lo8 ESECtJirv^E OFFICERS OP THE UNITED STATES. [PART I. 

Acts of Congress. Other departments, for similar objects in 
general, may be created by law. The salaries of the Heads of 
Departments are fixed by law. 

81. These departments are designed to aid the President of the 
United States in the discharge of the various duties belonging to, 
and in reference to the important and extensive operations connected 
with, the general executive power of the government. The officers 
having charge of them manage the affairs of the departments re- 
spectively, in general, under the instructions and directions of the 
President. In some instances, however, there are duties specially 
imposed upon them by Acts of Congress, which are to be performed 
by them independently and in the exercise of their discretion. 

In some of these principal departments there are branches thereof, 
termed bureaus, to which particular portions of their general busi- 
ness respectively are assigned. 

Each of the great departments has an official seal ; and copies 
of their records, duly authenticated, are, by Act of Congress, made 
competent evidence. It is also so provided with respect to some 
of the bureaus. 

The heads of the principal departments are authorized, by Act 
•of Congress, to appoint the clerks thereof respectively, except that 
some of the principal clerks are appointed by the President. 

Congress may, by law, vest the appointment of such inferior oifi- 
cers as they think proper, in the heads of departments. Cons, of 
U. S. Art II. Sect. II. 2. 

State Department. 

82. The duties, in general, of the Secretary of State, through 
his department, as they are declared by Act of Congress, are to 
have the custody of the originals of all the laws, treaties and other 
public documents of the United States ; to record the same ; to 
furnish authentic copies of the same when duly required ; to keep 
the great seal of the United States, and to affix it, with his signa- 
ture, to all commissions and other documents requiring it, there 
being issued from this department commissions to all civil officers 
of the United States, appointed by the President, by and with the 
advice and consent of the Senate, or by the President alone ; to 
conduct the political and civil relations of the government with 
foreign powers, as to negotiating treaties and other regulations 
and arrangements therewith, and in reference to the memorials or 
applications of foreign ministers, agents or persons, either in this 
country, or abroad through the ministers of the government in 
foreign countries, as ambassadors, envoys, charges des affaires, 
or consuls ; and to perform various specific duties, relative to the 
department, and under the direction of the President of the United 
States. The patent office was a branch of this department, as were, 



CH. Vni.] EXECUTIVE OEFICERS OF THE UNITED STATES. 159 

also, the pension office, through which pensions for military services 
are allowed and paid, in pursuance of Acts of Congress ; but these 
branches of the public affairs are now under the supervision of the 
Department of the Interior. 

There are in this department a diplomatic bureau, a consular 
bureau, and a domestic bureau. 

War Department. 

8.3. As to the duties, in general, of the Secretary of war, he 
has the general superintendence, under the direction of the Presi- 
dent, of the military affairs of the government. 

84. Armies. Acts of Congress providing for the raising and 
supporting of armies, and for their government and regulation, are 
carried into effect by the President, through this department. Sol- 
diers for the army are thus enlisted, and officers appointed ; its 
operations in war, and its disposal in time of peace are so directed, 
as all military commissions and orders are issued. In the same 
manner, also, are the affairs of the Military Academy of the United 
States du'ected, and its commandant, professors and cadets ap- 
pointed. 

There belong to this department the quarter-master's department, 
the engineer department, the ordnance department, a subsistence 
department under the charge of the commissary-general, a pay de- 
partment, a medical department, and a bureau of topographical 
engineers. 

Treasury Department. 

85. It is the duty, in general, of the Secretary of the Treasury 
to manage the fiscal operations of the government ; having cogni- 
zance of all matters connected with the national revenue, and the 
supervision of the custom houses, and their officers. He is required 
by law to make a report annually to Congress of the fiscal affairs 
of the nation, containing a statement of receipts and expenditures, 
and an estimate of future revenue. 

In the organization of this department there are various subordi- 
nate officers, having distinct offices or bureaus ; 

1. Five or more Auditors, whose business it is to examine all 
accounts with the treasury and certify the balances ; and for this 
purpose certain classes of accounts are assigned to each auditor. 

2. There are two or more Comptrollers, whose duty it is to 
revise the accounts certified by the different auditors, make a record 
of the balances, and certify them to the Register. 

3. It is the duty of the Register to preserve these accounts thus 
certified to him ; and also to keep an accurate account of all the 
receipts and expenditures of the government. 

4. It is the duty of the Treasurer to receive and keep the public 
money, until duly ordered to disburse it : wliich can only be upon 



160 EXECUTIVE OFFICERS OF THE UNITED STATES. [PAUT I. 

warrants drawn by the Secretary, countersigned by the proper 
Comptroller and Auditor, and recorded by the Register. 

5. It is the duty of the Solicitor of the treasury to be the legal 
adviser of the department, and to superintend all litigation connected 
therewith. 

The Commissioner of Customs has the superintendence of the 
collection of the customs and duties on foreign imports, and matters 
relative thereto. This branch of the department was established 
by Act of Congress in 1849. 

The general Mint of the United States, with its several branches, 
is under the direction of this department ; the appointments of the 
officers and agents thereof being made by the President, or Secre- 
tary of the Treasury, as provided by Act of Congress. 

In general, all accounts and claims against the United States 
must be examined and adjusted by the proper officers of the Trea- 
sury Department before they can be paid. This can be done 
where there is authority given therefor by Act of Congress. Such 
a claim cannot be otherwise paid, except by a special Act of Con- 
gress. The United States cannot be sued ; there being no provi- 
sion in the federal Constitution authorizing it. 

In the year 1855 it was enacted by Congress that there should 
be a Court of Claims, with jurisdiction to hear and determine all 
such claims founded upon any Act of Congress, regulation of any 
executive department, or contract mth the general government, 
which may be suggested to the Court by petition ; and also all 
claims referred to it by either House of Congress. The organization 
and jurisdiction of this court are made the subject of notice in 
treating of the Judiciary of the United States. 

There are assistant treasurers in Boston, New York, Philadel- 
phia, St. Louis, and Charleston respectively. In these subordinate 
treasuries monies are deposited by collectors of customs, and by 
other officers and agents, subject to the orders and control of the 
general government. 

Navy Department. 

86. The Secretary of the Navy has the general superintendence 
of the navy of the United States, its operations and affairs, under 
the instructions of the President. 

The Acts of Congress for providing and maintaining a navy, and 
for its government and regulation, are carried into effect and en- 
forced by the President, through this department; enlistments 
and appointments therefor are thus made, and its operations di- 
rected, as all naval commissions and orders proceed through it. 
There have been created, within this department, a bureau of navy- 
yards and docks, a bureau of construction, equipment and repair, a 
bureau of provisions and clothing, a bureau of ordnance and hydo- 
graphy, and a bureau of medicine and surgery. 



CH. VIII.] EXECUTIVE OFFICERS OF THE UNITED STATES. 161 

Post Office Department. 

87. The duties, in general, of the Post Master General, are — 
to make contracts for carrying the mail on the routes established 
by Acts of Congress, to prescribe regulations for the various Post 
Offices throughout the country, to superintend the receipt and col- 
lection of the rates of postage on letters and papers, as fixed by 
law, and the business of the department genei'ally. 

The principal officers and clerks in the departments are appoint- 
ed by the Heads of the departments respectively, under the direc- 
tion of the President of the United States. In some instances the 
inferior clerks and agents are appointed by them at their discretion. 

Department of the Interior. 

88. This Department was established by Act of Congi-ess, in 
1849, to be under the charge of a Secretary, and to embrace certani 
branches of business, and public affairs, which were formerly con- 
nected with some of the other departments j as the care, survey and 
sale of the public lands, including mines, the allowance of pensions, 
according to law, and the granting and issuing of patents ; together 
with other matters concerning the domestic policy of the country. 
The management of Indian affairs, the taking of the census, and 
the construction and care of the public buildings, belong to it. 

The bureaus connected with this department are the Land Office, 
the Patent Office, the Indian Office, the Pension Office, the chief 
officers of which are Commissioners respectively, and the Census 
Office, the chief officer of it being the Superintendent of Census. 

Ambassadors. 

89. Who are ambassadors ? 

Ministers of governm'ent, appointed by the President, by and with 
the advice and consent of the Senate, to reside in foreign countrie.s, 
through whom the correspondence of our government with foreign 
powers is conducted, treaties are negotiated, and matters connected 
with our foreign political i-elations are transacted. Minister.'^ Pleni- 
potentiary, and Envoys, are similar officers accredited to foreign 
governments, on special occasions and for particular purposes. 
Charges des affaires are such of an inferior grade, through whom 
are transacted matters of less importance and of an ordinary nature, 
with other nations. 

90. The rights and privileges of ambassadoi-s and ministers of 
foreign countries are determined by the law of nations. They are 
considered as representatives of the government or nation which 
sent them ; and are not subject to the laws of the country to which 
they are sent. This privilege generally extends to them, their 
domestics and servants. 

14* 



162 EXECrilVE OFFICERS OF THE TNITED STATES. [PART I. 

Ambassadors and ministers from foreign nations resident in this 
country are not amenable to its laws. They cannot be prosecuted 
or sued, or made answerable in any court of justice here. If they 
commit offences here, our government may demand of their sove- 
reign or nation that they be recalled to their ovra country and pun- 
ished there. It is held by some authors, that if a foreign ambassa- 
dor conspire with others to overturn the government of the country 
to which he is sent, he may be treated as a traitor, and punished 
accordingly under its laws. These privileges extend to the do- 
mestics and servants of foreign ministers. 

By Act of Congress, any writ or process issued by a federal or 
State court, against any foreign ambassador or minister, or his do- 
mestic or servant, is void ; and the person ordering it, and the 
officer executing it, are liable to be punished. This provision does 
not protect such domestic or servant as to debts contracted before 
entering into such service. 

' ' As ambassadors and ministers are the representatives of their 
sovereigns, and requisite for negotiations and foreign intercourse, 
their persons, by the consent of all nations, have been deemed in- 
violable. If, however, ambassadors should be so regardless of theii" 
duty, and the object of their privileges, as to insult or openly attack 
the laws or government of the nation to which they are sent, their 
functions may be suspended by a refusal to treat with them, or ap- 
plication can be made to their own sovereign for their recall, or 
they may be dismissed, or be requii'ed to depart within a reasonable 
time. The writers on public law go still further, and allow force 
to be applied to confine or send away an ambassador, when the 
safety of a State, which is superior to all other considerations, ab- 
solutely requires it, arising either from the violence of his conduct 
or the influence and danger of his machinations. 

This is all that can be done ; for ambassadors cannot, in any 
case, be made amenable to the civil or criminal jurisdiction of the 
•country. 

In supposition of law, an ambassador is considered as if he were 
-out of the territory of the foreign power ; and it is an implied 
agreement among nations that an ambassador, while he resides 
within the foreign state, shall be considered a member of his own 
country, and the government he represents has exclusive cognizance 
of his conduct and control of his person. An ambassador is also 
deemed under the protection of the law of nations, in his passage 
through the territories of a third and friendly power, while upon 
his public mission, in going to and returning from the government 
to which he is deputed. To arrest him under such circumstances 
would be a breach of his privilege as a public minister. The at- 
tendants of an ambassador, attached to his person, and the effects 
in his use, and the house in which he resides, are under his protec- 



CH. viil] executive officers op the united states. 163 

tion and privilege, and equally exempt from the foreign jurisdiction. 
The distinction between ambassadors, ministers plenipotentiary, 
envoys extraordinary, and resident ministers, relates to diplomatic 
precedence and etiquette, and not to their essential powers and 
privileges." 1 KenVs Commentaries, p. 38-40. 

By the federal Constitution, the Courts of the United States have 
jurisdiction in all cases affecting ambassadors, and other public 
ministers ; the jurisdiction of the Supreme Court of the TJnited 
States in cases against them being exclusive. See Part I. Chap. 
IX. on the Judiciary of the United States. Cons, of U. S. Art. 
III. Sect. II. 1. 

There are ambassadors and other such ministers accredited, by 
foreign powers, to our government. They are received and ac- 
knowledged by the President of the United States, and generally 
reside at the seat of government. 

Consuls. 

91. Consuls are officers appointed by the President, by and 
with the advice and consent of the Senate, residing in foreign na- 
tions and the chief cities and towns thereof, to attend to the com- 
mercial interests of our country, and to the rights of our merchants, 
seamen and citizens, residing or visiting there, and through whom 
any correspondence of our government with the functionaries of 
foreign nations on these subjects is carried on. The acknowledg- 
ment and proof of commercial papers and documents are taken by 
them, certificates of citizenship made out by them, and various other 
matters relative to trade and commerce performed by them. There 
are consuls in this country appointed by foreign governments. 

92. There are Acts of Congress in relation to the powers and 
duties of consuls and vice consuls of this government in foreign 
countries. They are specially authorized to receive the protests 
of masters of vessels, and others in regard to American commerce ; 
and it is provided that consular certificates under seal shall receive 
faith and credit in the courts of the United States. It is likewise 
made their duty, when the laws of the country in which they reside 
permit, to administer on the personal estate of American seamen 
dying within their consulates, and leaving no legal representatives ; 
and to take charge of and secure the effects of stranded vessels, in 
the absence of the master, owner or consignee ; and to provide for 
destitute seamen within their consulates, and to send them, at the 
public expense, to the United States ; and masters of American 
vessels are required, on arrival at a foreign port, to deposit their 
registers, sea letters, and passports, with the consul, vice consul, 
or commercial agent, if any, at the port ; though this injunction 
only applies where the vessel shall have come to an entry, or trans- 
acted business at the port. 



164 EXECUTIVE OFFICERS OF THE UNITED STATES. [PART I, 

It has been decided in our courts, that a foreign consul, duly 
recognized by our government, may assert and defend, as a party, 
the rights of property of individuals of his nation, in the courts of 
the United States, and may institute suits for that pui-pose, without 
any special authority from the party for whose benefit he acts. But 
the courts have not gone so far as to recognize the right of a con- 
sul to receive actual restitution of the property or its proceeds, 
without showing some specific power for the purpose from the party 
in interest. 

By the Constitution of the United States, jurisdiction in cases 
affecting consuls is vested in the federal courts ; and in cases against 
them it is, by Act of Congress, exclusive of the State Courts. Cons, 
of U. S. Art. III. Sect. II. 1 ; and see Part I. Chap. IX. on the 
' ' Judiciary of the United States. ' ' 

Consuls have certificates of their appointment, and must be ac- 
knowledged by the government within whose sovereignty they re- 
side, before they can act. When a consul is received and acknow- 
ledged by the government to which he is sent, it issues to him an 
official wi'iting, which is called an exequatur, declaring the assent 
of that government to regard him in such a character. And the 
powers of a consul may be annulled by the government to which he 
is sent, or in whose country he resides. A government may appoint 
as its consul in a foreign country, either one of its own citizens or 
a subject of that country. The consuls appointed by the govern- 
ment of the United States are paid, generally, by fees of office ; in 
some cases they receive salaries. 

Foreign consuls are not entitled to the rights and privileges of 
ambassadors and other ministers, as to exemption from the opera- 
tion of the laws of the country in which they reside. 

" Consuls are commercial agents, appointed to reside in the sea- 
ports of foreign countries, vath commissions, to watch over the 
commercial rights and privileges of the nation deputing them. The 
establishment of consuls is one of the most useful of modern com- 
mercial institutions. Consuls have been multiplied and extended 
to every part of the world where navigation and commerce can suc- 
cessfully penetrate ; and their duties and privileges are now gene- 
rally limited and defined in treaties of commerce, or by the statute 
regulations of the countries which they represent. In some places 
they have been vested \nth judicial powers in disputes between their 
own merchants in foreign ports. But no government can vest its 
consuls with judicial power over its subjects in a foreign country, 
without the consent of the foreign country, founded on treaty; and 
there is no instance in Europe of the admission of criminal jurisdic- 
tion in foreign consuls. 

" The particular powers and duties prescribed to consuls by our 
Acts of Congress are similar to those of British consuls, and of 



CH. Vin.] EXECUTIVE OFFICERS OF THE UNITED STATES. 165 

consuls under the convention between this countiy and France ; 
and they are in accordance with the usages of nations, and not to 
l)e construed to be in exclusion of others, resulting from the nature 
of the consular appointment. 

' ' Consuls are to be approved and recognized in the usual form, 
and if any consul be guilty of illegal or improper conduct, he is 
liable to have his exequatur, or the written recognition of his cha- 
racter, revoked, and to be punished according to the laws of the 
country in which he resides as consul ; or he may be sent back to 
his own country at the discretion of the government which he has 
offended. 

" A consul is not such a public minister as to be entitled to all 
the privileges appertaining to that chai-acter ; nor is he under the 
special protection of the law of nations. He is entitled to privi- 
leges to a certain extent, as for safe conduct, but he is not entitled 
to the jws gentium, or right of sovereign nations. It may be con- 
sidered as settled law, that consuls do not enjoy the protection of 
the law of nations, any more than other persons who enter the 
country under a safe conduct. In civil and criminal cases, they 
are equally subject to the laws of the country in which they reside. " 
1 Eenfs Commentaries on American Law, p. 40-45. 

Districts of the United States. 

94. Territorial districts or divisions are adopted for admin- 
istering and executing the laws of the United States, called judicial 
districts, consisting each of one State, or parts thereof (p) These 
divisions are also used for military and other purposes. 

The officers of the United States in each of these districts are, 
a judge of the District Court of the United States, a District 
Attorney, , and a Marshal, with his deputies. 

Territorial Governments. 

95. The governments of the tei-ritories of the United States 
established by Act of Congress, in pursuance of the constitutional 
power of Congress to make all needful rules and regulations 
respecting such territories, being dependent upon the government 
of the Union, it is generally provided that the principal officers 
thereof shall be appointed by the President. There are usually 
thus appointed, by and with the advice and consent of the Senate 
of the United States, a governor and secretary for each of those 
Territories, (r) 

(p) See head "Courts of the United States," Part I. chapt. IX. 
(q) For a notice of these officers, see " Judiciary of the United States," 
i'lirther oa. Part I. chapt. IX. 
(r) See the head " Territorial Goveruments," chapters L III. 



166 EXECUTIVE OFFICERS OF THE UNITED STATES. [PABT I. 

Titles of office, &c. 

96. "No title of nobility shall be granted by the United 
States ; and no person holding any office of profit or trust under 
them, shall, -without the consent of Congress, accept of any 
present, emolument, office or title, of a,ny kind whatever, from 
any king, prince or foreign State." Cons, of TJ. S. Art. I. Sect. 
it. 1. 

There is no honorary title or term of address given, by the Con- 
stitution or law, to the President, Yice President, any member of 
Congress, or civil officer of the ITnited States. Certain customary 
titles of this kind are applied to them, from courtesy or etiquette. 

Provisions relative to executive officers and clerks. 

9*1. By Act of Congress, every clerk and other officer in any 
©f the departments of government, is required to take an oath 
to support the Constitution of the United States, and well and 
faithftiUy execute the trust committed to him. 

It is provided by several Acts of Congress, that any officer of 
the United States, or person holding any place of trust or pi'ofit 
under or in connection with any executive department of the gov- 
ernment, or under the Senate or House of Representatives, or any 
Senator or Representative, who shall act as agent or attorney for 
prosecuting any claim against the United States, or aid or assist 
in the prosecution of any claim, or receive any share of any claim 
for having aided in its prosecution, shall be liable to be indicted 
therefor, and, on conviction, to fine and imprisonment. 

By the same Acts, also, it is enacted that for bribery, or the 
unlawful influencing of members of Congress, or any person 
holding any office of trust or profit, as aforesaid, the person giving 
and the person receiving the bribe, are each guilty of a high 
crime and misdemeanor, and upon conviction thereof shall be 
punished by fine and imprisonment. 

It is also so provided that no officer in any department of govern- 
ment, or branch thereof, or any other person whose salary, pay, 
or emoluments, is or are fixed by law, or by the regulations of any 
department or office, shall receive any additional pay or extra 
allowance or compensation whatever, for any service or duty, unless 
the same shall be authorized by law and an appropriation be 
explicitly made therefor. 



CHAPTER IX. 

JUDICIARY OF THE UNITED STATES. 

1. ' ' The judicial power of the United States shall be vested in one 
Supreme Court, and in such inferior courts as the Congress may, 
from time to time, ordain and establish. " Cons, of U. S. Art. 
III. Sect. I. 

These Courts constitute the judiciary or judicial department of 
the general government. 

2. What is the nature in general of the powers and duties of 
the judicial department of the genei'al government ? 

It is that branch of the general government to which is intrusted 
the power of applying and expounding the laws, in the administra- 
tion of justice, according to the jurisdiction given to it. 

It is vested with the power to administer justice, under the Con- 
stitution and laws of the United States ; and, consequently, in the 
exercise of its proper jurisdiction, to interpret and enforce the 
provisions of the Constitution. 

It is to be considered as instituted by the federal Constitution, 
in accordance with the preamble thereof, in order ' ' to establish 
justice." 

3. It is a co-ordinate department of the general government, in 
the exercise of its proper powers independent of the other depart- 
ments thereof. 

It is the representative of the people of the Union, having its 
authority from them through the Constitution, as the source of 
power. 

The judicial power of the United States is thus separated and 
made independent, and not blended with one or both of the other 
departments of government. It is itself a substantive, necessary 
part of the general government. Under our system, the powers of 
government are distributed amongst three several departments, each 
acting in its proper sphere independently of each other, and yet 
all mutually connected, (a) 

4. The judicial department is limited, as to its powers and 
jurisdiction. 

The government of the United States being limited to certain 
national objects, as provided in the federal Constitution, this limi- 
tation applies to the judicial as to the other departments. 

The same principles and rules for the construction of the federal 

167 

(a) See Part I. chapt. I. 



168 JUDICIARY OF THE UNITED STATES. [PAET I. 

Constitution are proper in regard to all the dej^artments of the 
general government. 

5. The judiciary of the United States has the power, in the 
administration of justice, according to its jurisdiction, to determine 
the validity or invalidity of a law of Congress, or of an Act or 
proceeding of the Executive Department of the general govern- 
ment, in respect to the conformity thereof to the federal Constitu- 
tion. 

The right of courts of justice, in the due administration of the 
Law, to pronounce or treat legislative Acts as void, on the ground 
of their unconstitutionality, rests upon the soundest and clearest 
principles. 

The powers conferred by the federal Constitution upon any of 
the departments of government are delegated and limited. Every 
Act of delegated authority contrary to the commission under 
which it is exercised must be void ; and no Act of Congress con- 
trary to the Constitution, which is the commission from which 
every department of the government derives its authority, can 
therefore be valid. 

The Constitution is the declared will of the people, and it cannot 
be intended that the representatives of the people in the national 
Legislature should be enabled to substitute their will in the place 
of the will of their constituents ; and to render a construction by 
them of their own powers conclusive upon the other departments. 

The interpretation and application of the laws, in the adminis- 
tration of justice, is the peculiar province of judicial courts ; and 
as the federal Constitution is in fact a fundamental law, and the 
courts are bound to regard it as such, it is as much their duty to 
ascertain its meaning, as to ascertain the meaning of any Act 
proceeding from the Legislature. 

If in any case there should be found an irreconcilable variance 
between a law and the federal Constitution, that which has the 
superior obligation and validity ought, of course, to be preferred ; 
the Constitution should prevail over the law, and the intention of 
the people themselves be carried into effect, instead of the intention 
of their agents or representatives. 

According to these propositions, the people are regarded as 
superior to both the judicial and the legislative power of the 
government ; and when the will of the Legislature, declared in 
the law, stands opposed to the will of the people, declared in the 
federal Constitution, the judges are to be governed by the latter 
rather than by the former ; and courts of justice are bound to 
regulate their decisions by the fundamental law in the Constitution, 
over which the Legislature has no control, rather than by those 
laws which it may at any time repeal or alter, and which derive 
their validity and effect from the Constitution. 



CH. IX.] JUDICIARY OF THE UNITED STATES. 169 

It has the power, also, of deciding upon the validity of a consti- 
tutional provision, or law of a State, in regard to the accordance 
thereof with the Constitution of the United States. 

By the federal Constitution it is provided that the judicial power 
of the United States shall extend to all cases arising under the 
Constitution, law and treaties of the United States \ and as these 
must be regarded as the supreme law of the land, the federal Courts 
have the right, as it is their duty, in tlie ordinary exercise of their 
jurisdiction, to declare and treat as void the Constitution, laws and 
proceedings of a State so far as, in their judgment, they are repug- 
nant thereto. 

7. As to the authoi'ity of the decision of the Supreme Court 
of the United States, in such cases, involving the interpretation of 
the federal Constitution, it must, necessarily, be final and con- 
clusive. (6) 

8. The federal judiciary is thus made the authorized expounder 
and interpreter of the federal Constitution, as to all cases which 
come before it in the course of the administration of justice. 

9. The judicial department, then, is an important constitutional 
check upon the other branches of the general government, and the 
means of preventing them from transcending their proper powers ; 
as also of keeping the States severally within their peculiar spheres, 
as parts of the system of the Union. 

10. These highly important functions of the judiciary render it 
necessary that its independence should be secured by constitutional 
provisions, (c) 

Jurisdiction in general. 

11. " The judicial power shall extend to all cases in law and 
equity, arising under this Constitution, the laws ot the United 
States, and treaties made, or which shall be made, under their au- 
thority ; to all cases affecting ambassadors, other public ministers 
and consuls ; to all cases of admiralty, or maritime jurisdiction ; to 
controversies to which the United States shall be a party ; to con- 
troversies between two or more States, between a State and citizens 
of another State, between citizens of different States, between citi- 
zens of the same State claiming lands under grants of different 
States, and between a State, or the citizens thereof, and foreign 
States, citizens or subjects." Cons, of U. S. Art. III. Sect. II. 

" The judicial power of the United States shall not be construed 
to extend to any suit, in law or equity, commenced or prosecuted 
against one of the United States, by citizens of another State, or 

[b) See, in tlife cliaiiter, the head " Supreme Court of the United State.^." 

(c) See, in this chapter, the heads " Tenure of Office" and " Compen- 
sation." 

15 



170 JUDICIARY OP THE UNITED STATES. [PART I. 

by citizens or subjects of any foreign State. Cons, of U. S. 
Amendments, Art. XI. 

12. By " the judicial power of the United States," mentioned 
in these provisions of the Constitution, is meant the power or juris- 
diction which, in whole or part, may be conferred by Act of Con- 
gress on all the judiciary of the United States, or any part thereof, 
or on any court or tribunal, in pursuance of the federal Constitution. 

These provisions include all the cases of which the United States 
courts or Judiciary can entertain jurisdiction. 

They embrace the whole power of the Judiciary or judicial de- 
partment of the United States, which is thus defined and limited 
by the federal Constitution. 

All the objects to which the judicial power can be extended are 
thus specifically enumerated and expressed in the federal Consti- 
tution. 

This jurisdiction may be apportioned among several federal 
Courts by Congress, at its discretion ; except that the Constitution 
expressly provides that the Supreme Court shall have original 
jurisdiction in some particular enumerated cases. 

The jurisdiction conferred upon the federal Judiciary, by these 
provisions, is both original and appellate. 

13. What is meant by the jurisdiction of a court ? 

When a case is in the power of a court, to be tried or disposed 
of according to law, it is said to have jurisdiction of it. 

14. The jurisdiction of a court maybe considered, in regard to 
the nature of the cases under its cognizance, as civil or criminal ; 
and, in regard to the nature of its power, as original or appellate. 

15. A court has original jurisdiction of a case, when the first 
proceedings in it may be commenced in that court. 

16. A court has appellate jurisdiction of a case when the 
proceedings in the case must be commenced in some other Court, 
and may be thence transferred for revision and correction to that 

ourt. A court has appellate jurisdiction of a case when the case 
may be brought before it by appeal from a lower court. 

IT. The most usual mode of exercising appellate jurisdiction is 
by Writ of Error, or by Appeal. A Writ of Error is a common law 
process for the removal of a suit from an inferior court, but which 
removes nothing for re-examination but the law of the case, as the 
case appears on the record. 

18. An Appeal is a proceeding by which the cause is entirely 
removed from an inferior court, and the facts as well as the law 
therein are subjected to a review and retrial. 

19. It is under the general appellate power vested in the federal 
Courts that cases within their cognizance may be removed from 
a State court, and before as well as after judgment in the case ; 
and the right is exercised, as directed by Acts of Congress. 



CII. IX.] JUDICIARY OF THE UNITED STATES. lYl 

20. A Certiorari is a common law writ from a superior to au 
inferior court, commanding the latter to certify the record of a 
case to the latter court, for revision and correction ; on which, 
generally, the case is reviewed by the superior court only on mat- 
ter of law. 

21. A writ of Habeas Corpus cum causa is also a commou 
law process, issued by a superior to an inferior court, commanding 

\'l\q latter to have a certain cause brought before the former, where 
it may be tried on the facts. 

22. What is the provision of the federal Constitution as to the 
re-examining of facts tried by a jury ? 

' ' And no fact tried by a jury shall be otherwise re-examined in 
any court of the United States, than according to the rales of the 
common law." Cons, of U. S. Amend. Art. VII. 

By this provision the right of trial by jury is secured in all im- 
portant cases ; and the verdict of a jury cannot be reversed on 
matters of fact by the Supreme Court, or any other court of the 
United States. 

23. There are nine classes of cases stated in the federal Con- 
stitution, to which the judicial power of the United States may be 
extended. 

24. I. "To all cases, in law or equity, arising under this 
Constitution, the laws of the United States, or treaties made, or 
to be made, under their authority. ' ' 

As the Constitution, laws and treaties, of the United States, 
are the supreme law of the land, and these cases refer to national 
objects, it is proper that the jurisdiction of the national judiciary 
should be extended to them. The Constitution having been 
formed by all the people of the Union, the construction and 
operation of it ought to be ascertained by au authority derived 
from them. The necessity, also, of preserving uniformity in the 
interpretation of the national Constitution and laws, throughout 
the whole country, renders this jurisdiction indispensable. 

The jurisdiction of the federal courts under this clause is in 
cases at law or equity, and of a civil and criminal natui'e. 

This jurisdiction may be either original or appellate ; and 
exclusive, or concurrent, in some cases, with the State courts. 

It is on the authority of this provision of the Constitution that 
the appellate jurisdiction of the Supreme Court of the United 
States is extended, by Act of Congress, to decisions of the State 
courts, in some cases, involving the construction of the Constitu- 
tion, laws or treaties of the United States. See head "Supreme 
Court of the United States, ' ' further on in this chapter. 

The federal judicial power extends to cases arising under the 
national Constitution, where tliere are no laws passed in pursu- 
ance of it, in order to give efficacy to those Constitutional pro- 



172 JTJDICIAKY OF THE UNITED STATES. [PART I. 

visions which neither require nor admit of an Act of Congress to 
■enforce them. The provisions of the federal Constitution which 
contain prohibitions or restraints on the individual States are of 
this nature. 

It is only in ^ ' cases' ' made, that is, in suits or cases instituted 
according- to the regular course of judicial proceedings, that such 
jurisdiction can be exercised. The courts of the United States, 
or the judges thereof individually, cannot be consulted upon, or 
decide, mere abstract questions, or any matter not coming before 
them in the course of the administration of justice. 

In the cases embraced in this clause the jurisdiction of the 
federal courts depends upon the character or subject matter of the 
cause, and attaches, whosoever may be the parties. In some of 
the other classes of eases the jurisdiction depends entirely upon 
the character of the parties, and it is immaterial what may be the 
subject of controversy, 

25. II. ■' ' To all cases affecting ambassadors, other public 
ministers and consuls. ' ' 

The jurisdiction of the federal courts should be applied to these 
cases, because public ministers representing foreign nations, are 
entitled to be treated according to the law of nations, {d) and such 
cases may involve questions of national interest. See head ' ' Am- 
bassadors" and "Consuls," Part I, chapt. YIII. 

The jurisdiction conferred by this provision of the Constitution 
on the federal judiciary, in relation to cases against foreign ambas- 
sadors and ministers, is only such as a court of law can exercise 
consistently with the law of nations. 

In all these cases the Supreme Court of the United States has 
by the Constitution original jurisdiction ; in relation to such cases 
against ambassadors and other public ministers it is made by Act 
of Congress exclusive, and in suits brought by them concurrent 
either mth the inferior federal courts or -with the State courts ; it 
being, also, so concurrent in cases in which a consul or vice consul 
ss a party. 

The jurisdiction in these cases arises from the character of the 
parties, no matter what may be otherwise the nature of the com- 
plaint or demand. 

26. III. "To all cases of admiralty and maritime jurisdic- 
tion. ' 

The words admiralty and maritime are here synonymous. The 
cases included in this provision are such as relate to the high seas, 
whether crimes, captures, injuries or contracts. The high seas, 
including all places where the tide ebbs and flows, not being within 
any county or territorial district, constitute the grand highway of 

fd) See as to tlie "Law of Nations," Part II. chapt. II. 



CH. IX.] JUDICIARY OF THE UNITED STATES, 113 

nations ; and hence the propriety of referring all questions having- 
reference to this locality to the national judiciary, (e) Maritime 
causes generally depend upon the law of nations, and eouimonly 
affect aliens. 

These cases relate to acts done on the high seas, and matters 
occurring or transacted there. They are civil or criminal. There 
are Acts of Congress providing for the punishment of offences 
committed on the high seas. 

The jurisdiction of the federal courts in this class of cases is, from 
their nature, necessarily exclusive of the State courts. 

The federal courts have also jurisdiction of cases arising undei 
the Acts of Congress, made in pursuance of its power ' ' to reg- 
ulate commerce. ' ' 

27. IV. "To controversies to which the Fnited States shall 
be a party." 

It is necessary that the United States should be allowed to sue 
in the federal courts ; otherwise they would be compelled to sue in 
the State courts, and be subject to State jurisdiction. 

This provision implies that the United States may sue; but it 
does not authorize that they shall be sued. 

It is a principle of law that a nation or State cannot be sued, 
except by its own consent. The United States cannot be sued, 
there being no Act of Congress authorizing it. 

This jurisdiction of the federal courts, as applicable to civil 
cases, is exercised concurrently with the State courts. The United 
States may bring civil suits against private persons in the State 
courts. 

28. V. "To controversies between two or more States. ' ' 
Jurisdiction is granted to the federal courts in these cases, in 

order to secure impartial justice ; which might not be obtained in 
the coui'ts of either of the States which are parties to the con- 
troversy. Such jurisdiction is, also, in harmony with the general 
system of the .government of the Union, and is essential to its. 
peace and stability. 

The Supreme Court of the United States has original exclusive 
jurisdiction in this class of cases, by Act of Congress. 

29. VI. ' ' To controversies between a State and citizens of 
another State," 

Jurisdiction is given in such cases to the federal courts, in the 
fear that the State courts might not be impartial. 

It had been decided that this provision authorized suits by indi- 
viduals against a State, as well as by a State against individuals. 
And, hence, the eleventh Amendment to the federal Constitution 
was adopted,, which provides ' ' that the judicial power of the United 
States shall not be construed to extend to any suit, in law or equity, 

(e) Walker's Introd. to American Law, p. 117. 
15* 



174 JUDICIARY OP THE UNITED STATES. [PAKT I. 

commenced or prosecuted against one of the United States by citi- 
zens of another State, or by subjects of any foreign State." 

No State can now be sued by an individual, unless it be in the 
courts of the State, and by its own consent. 

By the Constitution of Delaware, it is provided, " Suits may be 
brought against the State, according to such regulations as shall 
be made by law. ' ' 

" The Legislature shall direct by law in what manner suits shall 
be brought against the State. " Cons, of Wisconsin, Kentucky, 
Alabama, Missouri, Mississippi. 

It has been decided that wliere in a suit brought by a State 
against an individual, he takes out a Writ of Error against the State, 
this latter proceeding is not prohibited by the Amendment to the 
Constitution, as it is not an original suit against the State. 

In suits of this class the Supreme Court of the United States has 
original jurisdiction, concurrently with the other federal courts and 
with the State courts ; and appellate jurisdiction over those courts 
where they take cognizance of such suits ; by Act of Congress. 

30. VIL " To controversies between citizens of different 
States." 

Cognizance of such cases is given to the federal courts, in order 
to avoid the influence of any bias that might exist in the courts of 
either of the States engaged in such a controversy, and to furnish 
tribunals common to all the citizens of the Union, for the free and 
equal administration of justice. 

Jurisdiction in such cases is concurrent in the federal courts and 
the State courts. 

Citizenship, in reference to this jurisdiction, means only resi- 
dence ; and if a citizen of one State removes with his family into 
another State, with a bona fide intention to reside there, he in- 
stantly becomes a citizen of that State, and may sue, as such, in 
the federal com-ts. (/) 

A citizen of a ten-itory, or of the District of Columbia, cannot 
sue a citizen of a State in these courts, {g) 

A citizen of the United States, residiug in any State of the 
Union, is a citizen of that State. Qi) 

31, YIIL ' ' To controversies between citizens of the same 
State claiming lands under grants of different States." 

Jurisdiction is given to the federal courts in these cases, because 
as the rights of the two States to grant the land are drawn in ques- 
tion, neither of them ought to decide the controversy. 

(f) 3 Wash, a C, 546. 4 Id. 101, 516, 609. 4 DaU. 360. 

(g) 1 Whea . 91 ; 4 Wash. C. C. 519. See District of Columbia ; Citi- 
teas of the United States. 

(h) 6 Peters, 761. 



CH. IX. "1 JUDICIARY OF THE UNITED STATES, l^S 

This is the onlj' instance in which the federal Constitution directly 
provides for the cognizance of suits between citizens of the same 
State in the courts of the United States. 

32. IX. ' ' To controversies between a State or the citizens 
thereof, and foreign States, citizens or subjects." 

The reason for this provision is, that, as the general government 
is responsible for the conduct of its citizens towards other nations, 
all questions touching the justice due to foreign States and people 
should be determined by the national authority. 

There would, also, be thus secured to foreign States or citizens 
a greater impartiality in the decision of such cases, than there might 
be in the courts of a State, with which, or its citizens, the contro- 
versy should be depending. 

A State may sue, but cannot be sued without its consent, in any 
such case. The original jurisdiction in such cases is concurrent in 
the Circuit Courts of the United States and the State courts ; the 
federal Supreme Court having appellate jurisdiction. 

An alien may sue either in the Circuit Court of the United States 
or a State court ; and a citizen has the same election in bringing a 
suit against an alien ; in any such case in a State court the defend- 
ant having a right to transfer it to the federal Circuit Court 

Criminal jurisdiction. 

33. The courts of the United States have jurisdiction of all 
crimes and offences committed in violation of the laws of Congress 
made in pursuance of the federal Constitution. 

This jurisdiction is necessarily exclusive in the federal courts ; 
as in every indictment or prosecution for such oifence it must be 
charged to have been committed against the United States, and as 
the President may reprieve or pardon for it. Every criminal prose- 
cution must charge the offence to have been committed against 
the sovereign or government whose court sits in judgment upon 
the offender, and whose executive authority may pardon him. 

The jurisdiction of the courts of the United States in regard to 
criminal matters is entirely distinct from that of the courts of the 
several States respectively, The jurisdiction which the State 
courts have, in some cases, concui'reutly with the federal courts, is 
confined to civil causes, for civil demands, or to enforce penal 
statutes. 

The general government being formed for national purposes, it 
can have power to punish only crimes and offences which affect the 
whole country ; whilst the several States have cognizance generally 
of all offences, of a local and municipal character. 



IT 6 JUDICIARY OF THE UNITED STATES. [PART I. 

34. Offences against the United States are such as Congress 
has either express or incidental power to punish, by the Constitu- 
tion, (h) 

There are five classes of offences declared by Congress, in pur- 
suance of its express power to punish. I. Treason, against the 
United States. 11. Offences committed on the high seas ; as 
piracy, murder, manslaughter, mayhem, larceny, and other felonies ; 
being concerned in the foreign slave trade ; and certain offences 
against ships and vessels. III. "Counterfeiting the securities 
and current coin of the United States. ' ' I Y. Offences against 
the law of nations ; as violating any safe-conduct, or passport, 
issued under the authority of the United States ; and the infringe- 
ment of the rights of foreign ambassadors. Y. Offences com- 
mited in places wherein Congress has the power of exclusive leg- 
islation ; as in the District of Columbia, the territories of the United 
States, and in places purchased by the general government for the 
erection of forts, arsenals, dock-yards, and the like. There is a 
number of offences declared by Act of Congress, in pursuance 
of its incidental power; as offences against the revenue laws, 
against the laws regulating commerce with the Indians, against 
the post-office regulations, extortion and embezzlement by officers 
of the United States, and the like. 

Civil jurisdiction. 

35. The courts of the United States have jurisdiction of all 
civil cases arising under the federal Constitution, or the laws of 
the United States made in pursuance of it. 

The distinction between the jurisdiction of the federal courts 
and that of the State courts depends upon, and corresponds with 
the difference between the general government and the several 
State governments, as to their nature and powers, under the com- 
mon system. The power of the general government as to the 
jurisdiction of the federal courts can only be such as is expressly 
or impliedly granted by the Constitution of the United States, in 
regard to national objects, and the State governments may confer 
upon their courts respectively all jurisdiction not thus authorized, 
nor iaconsistent with any provision of the federal Constitution. 
There are within each State federal and State courts having 
separate jurisdiction respectively, according to this jurisdiction. 

Jurisdiction exclusive, or concurrent with the State courts. 

36. The federal and State courts have, in some cases, con- 
current jurisdiction 

(h) See as to " Power of Congress to punist offences," Part I. cli. III. 



CH. IX.] JUDICIARY OF THE UNITED STATES. 177 

The cases of such concurrent jurisdiction are stated under the 
heads of the particular federal courts respectively, in this chapter. 
See also the head, the ' ' Jurisdiction of the State courts and 
magistrates under Acts of Congress." 

The jurisdiction of the national judiciary, as declared in the 
federal Constitution, is in part necessarily exclusive, from the 
nature of some of the cases to which it extends ; and in part either 
exclusive, or concurrent with the State courts, in regard to other 
cases enumerated in the Constitution, as may be provided by Act 
of Congress. 

Its jurisdiction in criminal and admiralty cases is necessarily 
exclusive, from the nature of the cases. In all other cases its 
jurisdiction is either exclusive, or concurrent with that of the State 
courts, as is directed by Act of Congress. 

In all the cases to which the judicial power of the United States 
extends. Congress may vest exclusive jurisdiction in the national 
courts. It has done so in some cases. 

It is held by some jurists that all the jurisdiction contemplated 
by the federal Constitution must be vested in courts constituted by 
Congress ; and no portion of it can be conferred by Congress upon 
the State courts, (i) 

The jurisdiction which a State court can exercise concurrently 
with the federal courts, can only be in those cases of which it has 
jurisdiction under the laws of the State on general principles, and 
when such jurisdiction is not taken away by the federal Constitu- 
tion. Such jurisdiction cannot be derived simply by any Act of 
Congress, because the federal Constitution does not authorize 
Congress to confer it. 

It has been held, that it is only in those cases, where the State 
courts, previously to the federal Constitution, possessed jurisdiction, 
independently of national authority, and it was not taken away by 
die Constitution, that they can exercise jurisdiction concurrently 
with the federal courts. 

Where the State courts have jurisdiction concurrently with the 
courts of the United States, in the cases enumerated in the federal 
Constitution, there may be an appeal from the State courts to the 
national judiciary. See, further on, the head " Supreme Court of 
the United States, ' ' in this chapter. 

37. What power have the courts of the United States to issue 
judicial writs ? 

All the courts of the United States have power to issue all 
judicial writs, though not specially provided by Act of Congress, 
which may be necessary for tlie exercise of their respective jurisdic- 
tions, and agreeable to the principles and usages of law. 

(i) See Part II. chapt. VI. See par. 191, in this chapter. 



1T8 JUDICIAHY OF THE UXITED STATES. [PABT I. 

The individual judges of the federal courts have power to issue 
writs of Habeas cojyus, and afford relief thereon from all manner 
of unjust imprisonment occurring under, or by color of, the 
authority of the United States. 

Tfie common law. 

38. How is the common law regarded in the courts of the 
United States ? 

There is not under the federal government any common law, 
considered as a source of jurisdiction ; but where jurisdiction is 
given by the Constitution and laws of the United States, the 
common law, under their correction, is deemed a proper guide, and 
the means of exercising the jurisdiction, in all cases, civil and 
criminal, not specially provided for by Act of Congress.* 

Trial hy jury. 

39. What is the provision of the Constitution of the United 
States as to trial by jury ? 

" In suits at common law, where the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be preserved ; 
and no fact tried by a jury shall be otherwise re-examined in any 
court of the United States than according to the coui'se of the 
common law. " Cons, of U. S. Amendments, Art. Tll.f 

" The trial of all crimes, except in cases of impeachment, shall 
be by jury ; and such trial shall be held in the State where the 
said crimes shall have been committed ; but when not committed 
within any State, the trial shall be at such place or places as Con- 
gress may by law have directed. " Cons, of U. S. Art. Ill, Sect. 
II. S.f ' 

"i!fo person shall be held to answer for a capital or otherwise 
infamous crime, unless on a presentment of a grand jury ; except 
in cases arising in the land or naval forces, or in the militia, when 
in actual service, in time of war, or public danger." Cons, of 
U. S. Amendments, Art. V.f 

Fdghts of accused persons. 

40. There are certain rights and privileges secured by the 
federal Constitution to persons accused of crimes and misde- 
meanors ; in regard to process of law for their arrest, the bailing of 
prisoners, the mode of trial, and the degree of punishment. The 
provisions of the Constitution on these subjects are treated of in 
chapter YII, Part I, of this work. 

* See Part II. chapt. II. par. 11-12. 
t See Part I. chapt. VII. 



I 



CH. IX.] JUDiaARY OP THE UNITED STATES. 1^9 



COURTS OP THE UNITED STATES. 

41. What is the provision of the federal Constitution as to the 
organization of the courts of the United States ? 

"The judicial power of the United States shall be vested in one 
Supreme Court, and in such inferior courts as the Congress may 
from time to time establish. The judges both of the Supreme 
and inferior courts shall hold their offices during good behavior, 
and shall, at stated times, receive for their services a compensation 
which shall not be diminished during their continuance in office. ' ' 
Cons, of U. S. Art. Ill, Sect. I. 

It is imperative upon Congress, under the provisions of the 
federal Constitution, to provide for the establishment of a Supreme 
and inferior courts of the United States. 

42. The judicial power of the United States, or any part of it, 
can only be vested in "courts" established by Congress ; such 
courts to be composed of "judges" to be appointed with such te- 
nure of office, with reference to such "compensation at stated 
times, ' ' liability to impeachment, and in such manner , as it is pro- 
vided in the federal Constitution. 

Such judges, it seems, can be only nominated, and by and with 
the advice and consent of the Senate, appointed by the President 
of the United States, in pursuance of Art. II, Sect. II, 2, of the 
federal Constitution. 

Such judges, it seems, are not "such inferior officers," in the 
sense meant in the last clause of the paragraph of the Constitution 
just mentioned, whose appointment may be vested, by Congress, 
"in the President alone, in the courts of law, or in the heads of 
departments. ' ' 

43. What courts of the United States are there, established by 
Acts of Congress, in pursuance of the Constitution ? 

The Supreme Court of the United States, Circuit Courts, and 
District Courts, in general. 

There are, then, three grades of federal courts ; but for these 
courts there are only two grades of judges, namely Supreme and 
District judges. The Supreme judges are the Chief Justice of the 
United States, and his associates, as judges of the Supreme Court ; 
and the District Judges are those who hold the District Courts of 
the United States ; the Circuit Courts being held each by a single 
Supreme judge assigned to the particular circuit, and the District 
judge. 

There are, in general, no other judges of the national government 
than those of the courts above mentioned ; and no other judicial 
magistrates or justices of the peace. By a late Act of Congress a 
Court of Claims was established. In the District of Columbia 



180 JUDICIAET OP THE r:NT:TED STATES. [PART I. 

there is a Circuit Court for the District, consisting of three judges 
appointed by the President, and there are justices of the peace, ap- 
pointed in like manner, under the Acts of Congress, also, a judge 
of the Criminal Court, and a judge of the Orphans Court. 

44. The distribution of the judicial authority of the Union 
amongst the several courts of judicature is in the power of Con- 
gress to be made at its discretion, except as to the original juris- 
diction of the Supreme Court in the few cases specified in the Con- 
stitution. 

The whole judicial power of the Union ought, in all cases at 
least in which it is exclusive of the States, to be vested and distri- 
buted amongst national coui'ts. (j) 

The jurisdiction of the courts of the United States, in regard to 
all the cases enumerated in the Constitution, may be extended to 
them by Congress, when not restricted by the Constitution, in any 
form in which the judicial power may be exercised ; either in the 
shape of original or appellate jurisdiction, or both ; and as exclu- 
sive or concurrent. 

In all cases where the judicial power of the United States is to 
be exercised, it is for Congress alone to prescribe the rules of pro- 
ceeding, to direct the kind of process, and to declare its nature 
and effect, and the mode in which the judgments of the courts shall 
be executed. 

45. The Senate of the United States, when trying an impeach- 
ment, acts as a court of justice, and is denominated a " Court for 
the trial of impeachments ;" but though thus vested with high and 
peculiar judicial powers, it becomes specially organized for their 
exercise on extraordinary occasions, and does not belong to the 
number of the ordinary and permanent courts, and has not been so 
classed by the Constitution. 

Judges. / 

46. The judges of the cotirts of the United States are appointed 
by the President, by and with the advice and consent of the Senate. 

The President shall "nominate, and, by and with the advice and 
consent of the Senate, appoint judges of the Supreme Court, and 
all other officers of the United States whose appointment is not 
herein otherwise provided for, and which shall be established by 
law." CoJis. ofU. S. Art. II, Sect. II, 2. 
" See, above, in this chapter, par. 42. 

Tenure of office. 

47. " The judges both of the Supreme and inferior courts shall 
hold their offices during good behaviour." Cons, of U. S. Art. 
Ill, Sect. I. 

[j) See par. 101, in this chapter. 



CH. IX.] JUDICIARY OF THE UNITED STATES. 181 

The judges hold their offices for life, unless removed by impeach- 
ment. 

48. This is what is called their tenure of office. It is designed 
thereby to secure their independence and impartiality in the dis- 
charge of their duties. 

Compensation of the judges. 

49. " The judges both of the Supreme and inferior courts shall, 
at stated times, receive for the^ir services a compensation which 
shall not be diminished during their continuance in office. " Cons, 
of U. S. Art. Ill, Sect. I. 

This provision of the federal Constitution, in regard to the com- 
pensation of the judges of the United States, is intended further to 
secure their independence and integrity in the administration of 
justice. 

By these provisions in relation to their tenure of office and com- 
pensation, the judges are rendered thus independent in regard to 
the other departments of the government, the parties concerned in 
the cases before them, and the people. 

50. " The salaries of judicial officers may, from time to time, 
be altered, as occasion shall require, yet so as never to lessen the 
allowance with which any particular judge comes into office in re- 
spect to him." Federalist. — Story on the Constitution. 

Where there has been an addition made to a judge's salary, after 
he came into office, that addition may, in respect to him, be less- 
ened or taken away by Act of Congress. 

51. By Act of Congress, the Chief Justice of the United States 
eceives as his salary five thousand dollars per annum ; the Asso- 
ciate Judges of the Supreme Court each four thousand live hundred 
dollars per annum ; and the District judges each from one to three 
thousand dollars per annum, according to their locations respect- 
ively. 

Impeachmeyit of the judges. 

52. Are the judges of the United States liable to impeachment ? 
' ' The President, Vice President, and all civil officers of the 

United States, shall be removed from office on impeachment for, 
and conviction of treason, bribery, or other high crimes and misde- 
meanors. " Cons, of U. S. Art. II, Sect. IV. See the head 
" Impeachments," Parti, chap. 3. 

The Judges are thus made amenable for any corrupt violation 
of their trust or official misdemeanor ; and, on impeachment and 
conviction, they may be removed from office, and disqualified for 
the future from holding any office whatever under the government 
of the United States. 

16 



182 JUDICIARY OF THE UNITED STATES. [PART I. 

Supreme Court of the United States. 

53. How is the Supreme Court of the United States organized ? 
It consists of nine judges ; the Chief Justice of the United States 

and Associate Judges. 

It is created by the federal Constitution ; but its organization is 
under Acts of Congress. 

The federal Constitution merely declares that there shall be a 
Supreme Court of the United States, with certain original and 
appellate jurisdiction ; and it is to be implied from that instrument 
that the Chief Justice of the United States shall preside in it, with 
an indefinite number of judges to be associated with him. But by 
several Acts of Congress it is provided that the Court shall con- 
sist of the Chief Justice and eight Associate Judges ; any five of 
whom shall constitute a quorum. 

54. It holds but one session annually, commencing on the first 
Monday of January, at the seat of the general government. The 
time and places of its session may be determined by Congress. 

55. What is its jurisdiction as to extent of territory ? 

It extends over the whole United States, including the territories 
thereof and the District of Columbia. 

56. Its jurisdiction as to the subject matter thereof, applies, in 
general, to all the cases enumerated in the federal Constitution, as 
those to which " the judicial power shall extend." 

5*7. Its jurisdiction, as to the manner of exercising it, is both 
original and appellate, as determined by the Constitution and Acts 
of Congress. 

58. Congress can neither invest the Supreme Court of the 
United States with original jurisdiction in those cases in which 
the federal Constitution provides that it shall be appellate, nor in- 
vest it with ajjjDellate jurisdiction in those cases in which the Con- 
stitution declares that it shall be original. 

59. In what cases has the Supreme Court of the United States 
original jurisdiction ? 

" In all cases affecting ambassadors, other public ministers, and 
consuls, and those in which a State shall be a party, the Supreme 
Court shall have original jurisdiction. " Cons, of U. S. Art. Ill, 
Sect. II, 2. 

60. The original jurisdiction of the Supreme Court of the Uni- 
ted States comprehends these cases only; and Congress cannot 
extend it further. It has been so decided on the principle that 
the affirmation of a power in specified cases excludes it in all cases 
not specified. 

In these specified cases original jurisdiction is not to be confined 
absolutely to the Supreme Court of the United States, but may be 
vested, concurrently with it, in the inferior federal courts, by Acts 
of Cona;ress. 



CH. IX.] JUDICIARY OF THE UNITED STATES. 183 

61. The Supreme Court of the United States has, by Act of 
Congress, exclusive original jurisdiction in all of the cases above 
specified ; except in suits by a State against one or more of its 
citizens, or against citizens of other States, or aliens ; and except, 
also, in suits brought by ambassadors or other public ministers, or 
in which a consul or vice-consul shall be a party, (k) 

In such suits, as those last mentioned and excepted, its jurisdiction 
is concurrent, either with the other national courts, or with the 
courts of the several States. It is so provided by Act of 
Congress. 

62. What appellate jurisdiction has this coui't ? 

" In all the other cases before mentioned the Supreme Court 
shall have appellate jurisdiction, both as to law and fact, with such 
exceptions, and under such regulations, as the Congress mav 
determine." Cons of U. S. Art. Ill, Sect. II, 2. 

63. It revises, by writ of error or appeal, all final judgments 
and decrees, in civil actions, of the Circuit Courts of the IJnited 
States, where the value in controversy exceeds two thousand 
dollars. It has no appellate jurisdiction in criminal cases ; but 
in all cases, civil and criminal, where the judges of a Circuit 
Court of the United States differ in opinion, so as to prevent a 
decision therein, the point of disagreement shall be certified up to 
it for determination. 

64. Final judgments and decrees of the Circuit Courts of the 
United States, in cases of admiralty and maritime jurisdiction, and 
in prize cases, where the matter in dispute exceeds two thousand 
dollars, may be reviewed on appeal in the Supreme Court of the 
United States. 

65. The exercise of appellate jurisdiction is not limited by the 
federal Constitution to the Supreme Court of the United States. 
Congress may ci'eate inferior courts of the United States, in each of 
which it may vest appellate as well as original jurisdiction. 

66. In all cases where a concurrent original jurisdiction is 
vested by the Constitution in the Supreme Court, it has an appel- 
late power over the decisions of those courts, upon which Con- 
gress may confer, in the came cases, concurrent jurisdiction, 
whether original or appellate. 

6T. Has the Supreme Court of the United States appellate 
jurisdiction in any actions brought in the State courts ? 

By the Judiciary Act of Congress, the final judgments and 
decrees of the highest court of law or equity in any State, may be 
revised by the Supreme Court of the United States on writ of 
error, in the following classes of cases, viz : 

(k) ] Kent's Commeutaries, p. 298. 



184 JUDICIARY OF THE UNITED STATES. [PART I. 

Where the validity of a treaty, Act of Congress, or of any 
authority exercised under the United States, shall be drawn in 
question, and the decision shall be against it. 

Where the vaUdity, of a State Constitution, law or authority, 
shall be drawn m question on the ground of repugnancy to the 
federal Constitution, treaties or laws, and the decision shall be in 
its favor. 

Where the construction of the federal Constitution, or of a treaty, 
or statute of the United States, or commission held under the same, 
shall be drawn in question, and the decision shall be against the 
right or title claimed under the authority thereof. 

69. In case of a reversal by the Supreme Court of a judgment 
of the highest State court, the cause is gewevaWj ?^emanded to that 
court, with a mandate or command to the State court to conform 
its judgment to that of the Supreme Court ; or the Supreme Court 
of the United States may, if the cause has once before been 
remanded, proceed to a final disposition of it, and award execution 
accordingly. 

70. As the Constitution provides that the federal power of the 
Union shall extend to all cases arising under the Constitution, 
laws and treaties of the United States, &c., the appellate power 
of the federal courts must be extended to the State courts where the 
latter exercise concurrent jurisdiction in any of these cases. And 
this must be the case, also, when the State courts incidentally take 
cognizance of questions under the Constitution, laws, and treaties 
of the United States, of Avhich the federal courts have exclusive 
jurisdiction. 

11. As the appellate jurisdiction of the Supreme Court of the 
United States may be extended to all the cases comprized within 
the judicial power of the general government, it may be applied 
to the State courts where they entertain jurisdiction over any of 
these cases. 

This appellate jurisdiction of the federal couits extends to the 
State courts in such cases, whether they be criminal prosecutions, 
or those of a civil controversy. 

T2. This appellate jurisdiction of the Supreme Court of the 
United States is required, in order to decide effectively all cases of 
conflict between the several States, or of collision between the 
powers claimed by the United States and those claimed by a State. 
It is also necessary and proper, in order to maintain the supremacy 
of the Constitution, laws, and treaties of the United States over 
the Constitutions and laws of the several States, and to preserve 
uniformity of decision throughout the United States upon all 
subjects embraced by the federal Constitution. 

73. The Supreme Court of the United States is the court of 
the last resort, in all cases -Rdthin its jurisdiction ; its judgments 
and decisions being final and conclusive. 



CH. IX.] JUDICIARY OF THE UNITED STATES. 185 

Its decisions, made in the course of the administration of justice, 
are binding and conclusive upon the other departments of the 
general government ; and upon the State governments, and their 
departments severally, and the people. 

74. Its decision, so made, is thus binding and conclusive, not 
only as to the particular case before it, but as to the principles of 
the decision, which are to be held as precedents and authority, to 
bind future cases of the same nature. (I) 

Its decisions, so made, and the principles thereof, are thus bind- 
ing, on questions as to the constraction of the Constitution of the 
United States. 

75. The Supreme Court of the United States has power to 
issue prohihitory and mandatory writs, according to the principles 
and usages of law, to any courts, or persons holding office, under 
the United States. 

76. The Supreme Court of the United States can, then, in the 
exercise of its jurisdiction, declare an Act of Congress, or a 
measure or proceeding of any department of the general govern- 
ment, to be uuconstitutional and void, {t) 

77. The Supreme Court of the United States can, then, in 
the exercise of its jurisdiction, declare a constitutiou, law, or pro- 
ceeding, of a State, to be void, as contrary to the Constitution 
and laws of the United States, {l) 

Circuit Courts of the United States. 

78. How are the Circuit Courts of the United States organ- 
ized ? 

The Circuit Courts are held, in general, each by one of the 
judges of the Supreme Court, and the judge of the District Court 
of the United States for the pai-ticular district. 

79. How have judicial districts and circuits been established? 
By Act of Congress, the United States have been divided into 

judicial districts, consisting of one State or more, in which a 
District Court of the United States is held by a district judge ; 
and into circuits, formed of several districts, in each of which a 
Circuit Court is held by one of the judges of the Supreme Court 
and the District Judge. 

The States of Florida, Texas, Iowa, Wisconsin and California 
have not been attached respectively to any circuits ; but the Dis- 
trict courts therein have the jurisdiction of Circuit Courts, and 
the District judges act as Circuit judges. 

In the District of Columbia there is a local Circuit Court, for 
the District only, held by a Chief Justice and two associate judges 
thereof, specially appointed for the purpose. See, further on, in 
this chapter, the head. District of Columbia. 

(I) See cliapt. II, §10. and diapt. IX, § 5-8. 
18* 



186 JUDICIAEY or THE UNITED STATES. [PART I. 

80. What is the jurisdiction of the Circuit Courts ? 

They have original jurisdiction, concurrent with the courts of 
the several States, of all civil suits, at law and equity, when the 
value in dispute exceeds five hundred dollars, and the United States 
are plaintiffs ; or one party is an alien ; or the suit is between a 
citizen of the State where it is brought and a citizen of another 
State ; or against a citizen of the same State, claiming lands 
under a grant from another State. Suits, in such cases, com- _ 
menced in the State courts, may, at the instance of the defendant, 
be removed into the Circuit Courts. They also have original 
jurisdiction of all suits involving copy rights and patents ; and of 
all crimes punishable under the federal authority. The criminal 
jurisdiction is final unless there is a disagreement between the 
judges on a point of law, which is to be certified to the Supreme 
Court for decision. 

The Circuit Court has ajopellate jurisdiction from the District 
Court by writ of error or appeal, in the foUo^^dng cases ; first, in 
civil actions at law, where the value in dispute exceeds fifty dollars, 
by writ of error ; and, secondly, in admiralty cases, where the 
value in dispute exceeds three hundred dollars, by appeal. It has 
no appellate jurisdiction in cases of equity, or in criminal cases. 
In the cases of appellate jurisdiction in the Circuit Court, if the 
judges differ, the opinion of the judge of the Supreme Court 
prevails, as the cases cannot be certified into the Supreme Court. 

81. The Circuit Court of the United States in each circuit sits in 
four different capacities : 1st, as a court of common law ; 2nd, as 
a court of equity or chancery ; 3rd, as a maritime court, that is, a 
court trying matters relating to affairs on the high se^s ; 4th, as a 
court for the punishment of crimes against the laws of the United 
States. 

82. It is the court of the highest power, in criminal cases, 
under the laws of the United States. It has power to try all 
offences punishable with death, under these laws ; as murder, in 
forts, arsenals, and places ceded to the United States for national 
purposes, and on board of ships of war, in time of peace, and 
when not within the body of a county, or a harbor ; and piracy. 
All crimes and offences prohibited by the laws of the United States 
are tried and punished in this court, except some of an inferior 
grade, which are tried in the District Court of the United States. 
In criminal cases it proceeds by a grand and petit jury. 

83. An alien has his election to sue in the Circuit Court of the 
United States or in a State court. A citizen may sue an alien, or 
a citizen of another State, in either the Circuit Court or a State 
court. Such citizen or alien, a defendant in a suit commenced in 
a State court, may have it removed to the Circuit Court of the 
United States. 



CH. IX.] JUDICIARY OF THE UNITED STATES. 187 

District Courts of the United States. 

84. How are the District Coui'ts of the United States organ- 
ized ? 

They are held in the judicial districts respectively, by a district 
judge appointed for each district. 

85. How have the judicial districts been established ? 

The United States have been divided, by Act of Congress, into 
districts, consisting of a State, or ten'itory, or part thereof, for 
the purposes of the administration of justice and the execution of 
the laws. 

86. The District Courts of the United States have jurisdiction 
of the following cases, viz : first, by exclusive original cognizance, 
of all civil cases, of admiralty and maritime jurisdiction ; secondly, 
of all seizures, penalties, and forfeitures, under the laws of the 
United States ; thirdly, concurrently with the Circuit Courts of 
the United States, and the State courts, of all injuries by tort in 
violation of the law of nations, or of a treaty of the United States, 
when an alien sues ; fourthly, concurrently with the Circuit Court 
of the United States and the State courts, of suits brought by the 
United States, when the value in dispute does not exceed one hun- 
dred dollars ; fifthly, exclusively of the State courts, of suits against 
Consuls, Vice Consuls, suits to repeal patents and concerning 
captures; sixthly, of crimes and offences, cognizable under the 
authority of the United States, where the punishment does not 
exceed a fine of five hundred dollars, or imprisonment for six 
months. 

87. This court has jurisdiction of suits and cases under the 
laws made for the collection of customs and duties ; also of suits 
on contracts for seamen's wages. In some cases it exercises its 
jurisdiction as a court of equity or chancery ; in cases at common 
law, it proceeds according to the course thereof, and by jury trial ; 
and in criminal cases by a grand and petit jury. 

Courts in the Territories of the United States. 

88. What courts are there in the territories of the United 
States ? 

There is a District Court of the United States in each organized 
territory, held by a District Judge, who is appointed by the Presi- 
dent of the United States, by and with the advice and consent of 
the Senate of United States. There are also in these territorial 
governments courts established by their local laws, and judges and 
justices of the peace, appointed by their local authorities See, 
above. Part, I, chapt. I, head Territorial Governments. 

There is in each territory, in general, a Circuit Court consisting 
of a Chief Justice and two associate judges. 



288 JUDICIARY OF THE UNITED STATES. [PAET 1. 

Courts in the District of Columbia. 

89. There is a Court for the District of Columbia, established 
by Act of Congress, under the federal Constitution, called the Cir- 
cuit Court of the District, consisting of a Chief Justice and two 
associate judges, appointed by the President of the United States ; 
and there are, also, a District Court held by one judge, a judge 
of the Orphans Court, a register of wills, and justices of the peace, 
who are appointed in like manner. 

It is provided by the laws of the United States, that the said 
Circuit Court shall have cognizance of all crimes and offences com- 
mitted within the said district, and of all cases of law and equity 
between parties both or either of which shall be found resident 
within the said district ; and also of all actions and suits of a civil 
nature at common law or equity, in which the United States shall 
be plaintiff's or complainants ; and of all seizures on land or water, 
and of all penalties and forfeitures made, arising or accruing under 
the laws of the United States ; the judgments, orders and decrees 
of the Court being examinable, in the cases and manner provided, 
before the Supreme Court of the United States, by writ of error, or 
appeal, (o) 

The power of Congress to legislate over the District, and the 
nature of the government thereof, have been made the subject of 
notice in another part of this work, (p) 

Court of Claims. 

90. In the year 1855 there was a court established by Act of 
Congress, to be called the Court of Claims, to consist of three 
judges, appointed by the President, with the advice and consent 
of the Senate, and to hold their offices during good behavior. It 
is vested with jurisdiction to hear and determine all claims against 
the United States founded upon any Act of Congress, regulation of 
an executive department, or any contract, express or implied, with 
the government of the United States, which claims may be suggest- 
ed to the Court by a petition filed therein ; and also all claims 
which may be referred to the Court by either House of Congress. 

The Act provides that there shall be an officer called the Solici- 
tor of the United States, to be appointed by the President, with 
the advice and consent of the Senate, to represent the government 
in such cases before the Court. 

The Act directs that the Court shall report to Congress at the 
commencement of each session thereof, and at the beginning of 
each month during such session, the cases upon which the Court 

(o) Act of Congress of Feb. 27, 1801. 

(■p) See " Congress of the United States," above, chap. III., and chap. 
L, bead " District of Columbia." 



CH. IX.] JUDICIARY OF THE UNITED STATES, 189 

has finally acted, stating the material facts in each case which it 
finds established by the evidence, with their opinion thereon, and 
the reasons therefor, and presenting, with the report, when the case 
has been determined in faror of the claim, a bill of Congress for 
carrying the decision into effect ; the reports, together with the 
proposed bills, to be acted on by Congress in the usual manner. 

If a case be determined by the Court adversely to the claim, and 
the decision be confirmed by Congress, it is made conclusive, except 
that, for sufficient reason, in the course of law, the Court may 
grant a new trial. 

Officers of the federal courts. 

91. The principal officers of the courts of the United States 
are attorneys and counsellors at law, solicitors and commissioners, 
clerks and marehals. 

92. The attorneys and couuselloi's at law are persons learned iu 
the law, admitted by the courts, according to their rules, to assist 
parties in their pleadings, and in the conduct of their causes. They 
are officers of the courts, entitled to certain privileges, and subject 
to be suspended from practice, and to other punishment, for mis- 
behaviour in office. 

Attorney General of the United States. 

93. The Attorney General of the IJnited States is appointed 
by the President of the United States, by and with the advice and 
consent of the Senate. 

It is his duty, in general, to prosecute and conduct all suits iu 
the Snpreme Court of the United States in which the United States 
are concerned ; and to give his advice and council on questions of 
law, when required by the President, or heads of departments. 

District Attorneys of the United States. 

94. They are attorneys at law for the United States, appointed 
by the President, by and with the consent of the Senate, one for 
each judicial district, to prosecute indictments and charges against 
all delinquents for crimes and offences cognizable under the author- 
ity of the United States, and to act for the United States in all 
civil suits in which they are concerned. 

Commissioners. 

95. By Acts of Congress the Circuit Courts of the United States 
are respectively authorized to appoint Commissioners, who are 
to hold their appointments at the will of the courts, with authority 
to take recognizances of bail, which may be justified before them ; 
to take depositions of witnesses, and perform like services, in suits 



190 JUDICTARY OF THE UNITED STATES. [PART I. 

and prosecutions before those courts, in pursuance of the rules and 
orders thereof, and their acts and proceedings being, for the most 
part, subject to the revision of the courts. By the Act of Con- 
gress of 1850, "for the recovery of fugitives from labor, &c.," 
very important powers and jurisdiction are conferred upon such a 
commissioner. The provisions of the Act are stated in that part 
of this work which relates to fugitives from labor, (q) 

Marshals, 

96. Marshals of the United States are appointed, one for each 
judicial district, by the President, by and with the advice and con- 
sent of the Senate, for the term of four years ; removable at the 
pleasure of tne President. 

97. In general, their duties and powers are analogous to those 
of sheriffs in the several States. It is their duty to attend the Dis- 
trict and Circuit Courts of the United States in their districts re- 
spectively, and to execute within their districts all writs, precepts, 
process, sentences and judgments of the courts of the United States. 
There are various special duties assigned them by law. 

98. The marshals are generally assigned to take the census of 
the United States, as directed by Congress. 

They may appoint deputies, at their pleasure, and remove them 
in like manner ; being responsible for their official acts. They 
generally appoint a deputy for each county in their districts re- 
spectively. The deputy marshals are, also, by Act of Congress, 
removable at the pleasure of the Circuit or District Courts. 

Gaols and prisons, 

99. How may the marshals of the United States secure and 
confine persons arrested by them, or committed to their charge ? 

They are directed, by Act of Congress, to deliver their prisoners 
to the keepers of one of the gaols of the State, where the Legisla- 
ture thereof has made it the duty of the gaoler to receive them ; 
but otherwise the marshal may, under the direction of the district 
judge, provide his own place of custody. 

In general, the United States have not court houses ; but the 
federal courts are held in those of the States respectively : and 
there are no gaols or penitentiaries belonging to the Union, but 
the prisons of the States severally are used in the judicial proceed- 
ings of the federal courts for the confinement and punishment of 
prisoners and convicts, with the consent of the State legislatures 
respectively. 

(q) Seo above, Chapter V, § 21. 



J 



CII. IX.] JUDICIARY OF THE UNITED STATES. 191 

Jurisdiction of State courts and magistrates under Acts of Con- 
gress. 

101. The State courts and magistrates have been vested, by 
various Acts of Congress, with jurisdiction and powers in prose- 
cutions, suits and proceedings under Acts of Congress. 

102. They are not, however, obliged, nor can they be compelled, 
by the Acts of Congress, to exercis'e such jurisdiction or powers. 

They may do so, when authorized by the laws of the State, but 
cannot be compelled by Act of Congress. 

103. By Act of Congress, "for any crime or offence against the 
United States the offender may be arrested, imprisoned or bailed, 
(as the case may be) by any justice of the peace, or other State 
magistrate," for trial before the proper court of the United States; 
the bail, where the punishment may be death, to be admitted by a 
United States or State judge, as directed by the Act of Congress, (r ) 

(r) Act of Congress of 24th of September, 1789. 



OUR GOVERNMENT 



PART THE SECOND. 

Of the Governments of the several States, 



CHAPTER I. 

OF THE GOVERNMENTS OP THE SEVERAL STATES. 

1. These States are to be considered as having severally gov- 
ernments within themselves, and as standing, in respect to their 
governments and their people, in certain relations to the general 
government, and to every other State of the Union. 

Each State has a government of its own, in the form and powers 
thereof consistent with the provisions of the federal Constitution. 

2. The nature, in general, of the government of the Union, 
and of the governments of the several States, in respect to their 
mutual relations, is here to be kept in view. 

The federal government is that of the people of the United 
States as a nation, for national purposes ; and the several States 
have separate governments, for all other matters relating to them 
respectively, (a) 

In our general republic, there are combined the system of the 
federal government and those of the governments of the several 
States, all fitted to operate harmoniously in their proper spheres, 
for a common end. 

"In the compound republic of America, the powers surrendered 
by the people are first divided between two distinct governments, 
and then the portion allotted to each subdivided among distinct and 

(a) As to the relation between the general and State governments, and 
the powers of each, see Part the First, chap. I. 
192 



CH. I.] GOVERNMENTS OF THE SEVERAL STATES. 193 

separate departments. Hence a double security arises to tlie 
rights of the people. The different governments will control each 
other ; at the same time that each will be controlled by itself. "(6) 
Each citizen, then, owes obedience both to the general goyern- 
ment, and to the government of his State. 

3. The form of government of each State is that of a repre- 
sentative democracy ; each State being a republic. It is, in some 
cases, expressed in the Constitution of a State that there was 
thereby formed and established a free and independent republic, by 
the name specified. 

The federal Constitution provides that each State shall have a 
republican form of government. 

' ' The United States shall guarantee to every State in this Union 
a republican form of government. '' Cons, of U. S. Art. IV, 
Sect. IV. 

4. The general principle upon which the governments of the 
several States are founded is, that the supreme power is in the 
people ; and that they have a right to establish a government, and 
make laws for themselves, as they see proper, (c) 

5. The general pi'inciple as to the ends of all governments is, 
that government is instituted for the common good ; for the safety 
and happiness of the whole community, (c) 

6. The principle of representation, according to which the 
people exercise their supreme power by their representatives or 
delegates, is adopted and carried out in these governments. Their 
Constitutions were so formed, and their political and civil affairs 
are thus conducted, {d) 

All power being derived from the people, all magistrates, offi- 
cers of government, and persons vested with civil authority, aro 
the substitutes and agents of the people, and at all times accountable 
to them. 

7. As to the time when the several States became free and 
independent, those that originally formed the Union, having been 
colonies of Great Britain, became free and independent by their 
Declaration of Independence on the fourth day of July 1776 : 
And the other States were admitted into the Union as such, under 
the federal Constitution. 

8. Each State has a written Constitution of government. Its 
government was established by the people thereof, forming a written 
Constitution for their government. (/) 

(b) The Federalist, No. 4. (c) See the next following chapter. 

(c?j It is so in theory, and in general; any deviations from the principle, 
in constitutional structure, or in practical administration, this is not the 
place to notice, otherwise than as they are shown, in order, under the par- 
ticular subsequent heads. 

(f) See Part T, chapt. I, par. — p. 18. 

n 



194 GOVERNMENTS OF THE SEVERAL STATES. [PART H. 

9. The several States, and the people thereof, hold certain 
relations to the Union. 

The people of the TJuited States, as individuals, form the TJnion; 
and each State, in its collective capacity, is represented in the 
federal government and recognized and regarded as such, and its 
agency employed for many purposes, under the federal Constitution 
and laws. 

In this view it is to be considered that the people of each State 
have parted with a portion of their supreme power to the TJnion, 
by the federal Constitution, for the benefit of the common govern- 
ment. 

The powers which the people of the several States parted with 
to the Ilnion, so that they cannot exercise them in the State gov- 
ernments, ai'e all the "powers delegated to the United States" 
and vested in them exclusively, or that may be exercised by them 
exclusively; or "prohibited to the States severally;" by the 
federal Constitution. 

10. All the " powers not delegated to the United States, nor 
prohibited to the States" severally, by the federal Constitution, 
are reserved to the people of the several States. They remain, as 
it regards the Union, as the original powers and rights of the 
people, to be exercised by them, at their discretion, in the forma- 
tion of their State governments and in the enactment of their 
laws, (g) 

The States, or the people thereof, do not derive their powers 
from the Constitution of the Union, but by their own inherent 
reserved right can act on all subjects which have not been delegated 
to the federal government, or prohibited to the States. The gov- 
ernment of the United States can claim no powers which are not 
granted to it by the Constitution ; and the powers, actually granted, 
must be such as are expressly given, or given by necessary implica- 
tion. The powers retained by the States proceed from the people 
of the several States, and remain, after the adoption of the Con- 
stitution, what they were before, except so far as they may be 
abridged or restricted by that instrument. 

The colonies by the dissolution of their connection with Great 
Britain became sovereign and independent States ; the people 
thereof sovereign and independent ; having exclusive supreme 
power of government ; the States and the people thereof being 
considered either collectively or severally, or in both respects, as 
political communities. In the federal Constitution the people of 
the States, for the purposes therein declared, by their grant to the 
general government, by stipulation in reference to the States 
mutually, and by prohibition and restriction upon all the States, 

(g) See Part I, chapt. Ill, par. 9, 75, and chapt. II, par. 9-10. 



en. II.] GOVERNMENTS OF THE SEVERAL STATES. 195 

parted with and relinquished certain enumerated portions of that 
sovereignty and supremacy ; impliedly retaining all other portions 
thereof; but expressly providing, for the sake of security, that all 
such other portions of power ' ' are reserved to the States respect- 
ively, or to the people." (c.) 

11. The people of any State cannot confer upon its govern- 
ment powers prohibited to the several States by the federal Con- 
stitution. 

All acts of the people or government of any State, and laws 
passed by them, which are contrary to the provisions of the federal 
Constitution, or the laws of Congress in pursuance thereof, are un- 
constitutional and void. 

The federal Constitution, and the laws of Congress passed in 
pursuance thereof, are the supreme laws of the land, and any law 
contrary thereto is unconstitutional and void. 

12. A State cannot, either by a constitutional law, or by an 
Act of ordinary legislation, declare void a law of the United 
States, constitutionally passed, or suspend its operation within the 
territorial jurisdiction of the State. (/() 

13. The people of the several States have, by the federal Con- 
stitution, entered into certain obligations and parted with particu- 
lar rights to each other, in regard to their municipal laws and 
internal regulations respectively. 

' ' Full faith and credit shall be given in each State to the public 
acts, records and judicial proceedings of every other State. ' ' Cons, 
of U. S. Art. IV, Sect. I. 

The citizens of each State are entitled to all privileges and im- 
munities of citizens in the several States. Cons, of U. S. Art. IV, 
Sect. II, 1. Fugitives from justice, or from labor, escaping into 
other States, are to be delivered up. Cons, of U. S. Art. IV, 
Sect. II, 2, 3. 

The States cannot enter into any treaty, alliance or confedera- 
tion ; or into any agreement or compact with each other, without 
the consent of Congress ; or adopt commercial regulations with 
respect to each other. Cons, of U. S. Art. I, Sect. X, 1, 2. As 
to these subjects, see the proper heads, in Part the First, of this 
work. 

12. What are the objects, in general, of the federal govern- 
ment and of the several State governments, respectively ? 

The object of the federal government is to unite the people of 
all the United States into one nation, for national purposes ; and 
that of the several State governments, to regulate their local and 
municipal affairs. 

(c) See note I, in the Appendix. 

(h) See Part I, chap. VII, par. 9 75 ; and chap. II, par. 9-10. 



196 GOVERNMENTS OF THE SEVERAL STATES. [PART n 

"These States are constituent parts of the United States 
They are members of one great empire, for some purposes sov- 
ereign, for some purposes subordinate." 

' ' For all national purposes the States and the citizens thereof 
are one ; united under the same authority and governed by the 
same laws. In all other respects the States are necessarily foreign 
to, and independent of each other. ' ' 

' ' They form a confederate government ; yet the several States 
retain their individual sovereignty, and with respect to their muni- 
cipal regulations are to each other sovereign. " 

' ' The national and State systems are to be regarded as one 
whole. In America the powers of sovereignty are divided between 
the general government and those of the States. They are each 
sovereign with respect to the objects committed to it ; and neither 
sovereign with respect to the objects committed to the other. "(^) 

" The powers of the States depend on their own Constitutions; 
the people of every State had the right to modify and restrain them 
according to their own views of policy or principle ; and they 
remain unaltered and unimpaired, except so far as they were gTanted 
to the government of the United States, or prohibited and re- 
stricted, by the Constitution. This has been positively recognized 
by the tenth amendment to the federal Constitution." 

" The powers retained by the States proceed not from the people 
of America, but from the people of the several States, and remain 
after the adoption of the Constitution what they were before, except 
so far as they may be abridged by that instrument." In our 
system the legislature of a State is supreme in the exercise of the 
powers conferred by its own Constitution ; in all cases where its 
action is not restrained by the Constitution of the United States, {j) 

" The jurisdiction of a State is co-extensive with its temtory, 
and co-extensive with its legislative power; " and subject to the 
powers granted by the federal Constitution, it adheres to the ter- 
ritory as a portion of power not given away. ' ' The sovereignty 
of a State extends to every thing which exists by its own authority, 
or is introduced by its permission, {k) 

15. No State can secede at its pleasure from the Union. No 
State nor any number of States less than three-fourths, can, by 
virtue of any right reserved in the federal Constitution, secede at 

(i) 6 Wheaton's Rep. 414, 2 Peters' ReiL 590, 10 Peters' Rep. 579, 12 
Wheat. Rep. 334. 6 Wheat, Rep. 419. 4 Wheat. Rep. 410. Baldwin's 
Cons. Views, p. 14. 

(j) 1 Wheaton's Rep. 325. 4 Wheat. Rep. 193. 5 Wlieat. Rep. 17, 54. 
9 Wheat. Rep. 203, 9. 12 Wheat. Rep. 347. Baldwin's Cons. Views, 14. 

(k) 3 Wheat. Rep. 387, 389 : 6 Id. 429 ; 4 Peters' Rep. 564; Baldw. Cons, 
Views, p. 14. 



CH. I.] GOVERNMENTS OF THE SEVERAL STATES. 197 

pleasure from the Union. The federal Constitution may be amended 
by three-fourths of the States, as provided in it.(Z) 

16. The several States are, therefore, not to be considered as 
foreign to each other. They are parts of the same nation. 

11. No State, then, is completely sovereign. A State is not 
so, in reference to the Union and the federal government. Each 
State is, however, sovereign and independent in the exercise of its 
]iowers consistently with the provisions of the Constitution of the 
United States. 

18. Each State has formed a written Constitution of government, 
which is in accordance with the federal Constitution. There is 
much similarity between these Constitutions of the several States, 
in regard to the structure of their particular governments, and to 
the nature of their general provisions, f 

19. A marked feature in the Constitutions of the States respect- 
ively is the separation of the legislative, executive and judicial 
departments of the governments, which characterizes so strongly 
the structure of our general government. They also resemble the 
federal Constitution, with respect to many important principles and 
provisions. 

20. The provisions of the Constitution of each State may be 
classed under the following heads, namely ; first, those which relate 
to the organization of the legislative department ; secondly, those 
which relate to the organization of the executive department ; 
thirdly, those which i-elate to the organization of the judicial 
department ; fourthly, those which define and limit the powers 
delegated, and the powers reserved. 

21. The government of each State is, then, one of limited 
]iowers. 

Its powers are limited by the federal Constitution, and, as is 
generally the case, by the provisions of the Constitution of the 
State. 

22. In a State Constitution, the power of government is granted 
in general terms ; and it is limited by specific limitations or pro- 
hibitions. It is a rule of construction, therefore, as to the powers 
of the government of a State under its Constitution, that the grant 
of power is general, and the prohibition special ; or that all powers 
are to be considered as conferred, which are not expressly or in- 
cidentally prohibited. This is the reverse of the theory of the 
federal Constitution, (m) 

23. There are powers which may be exercised concurrently by 
the general government and the several State governments ; which 
are, therefore, ■ called concurrent powers. (?i) 

(/} See Part I, cliap. I. f See next following, cliap, §3. 

Cffi) See Part I, chap. IL (n) See Part, I, chap. L 



198 0OVERNMENTS OF THE SEVERAL STATES. [PART II. 

24. The powers of government are generally distributed, 
in each State, among three departments, the legislative depart- 
ment, the executive depariment, and the judiciary department. 

In some of the State Constitutions this division of the powers of 
government is formally and positively expressed. 

' ' The powers of the governnent shall be divided into three dis- 
tict departments ; the legislative, the executive and judicial. 

' ' No person or persons belonging to one of these departments 
shall exercise any of the powers properly belonging to either of 
the others, except in cases herein directed or permitted." Cons. 
of Tennssee, Maine, California. 

" The legislative, executive and judicial departments of govern- 
ment shall be distinct, and each department shall be confided to a 
separate body of magistracy ; and no person or collection of persons, 
being of one these departments, shall exercise any power properly 
attached to either of the others, except in the instances herein 
expressly permitted. " Cons, of Georgia. The Constitutions of 
Kentucky Indiana, Louisiana, Mississippi, are similar in this re- 
spect. 

" In the government of this State, the three essential powere 
thereof, to wit, the legislative, executive and judicial, ought to be 
kept as separate from, and independent of, each other as the nature 
of a free government will admit, or as is consistent with that chain 
of connexion that binds the whole fabric of the constitution in one 
indissoluble bond of unity and amity." Cons, of New Hamp- 
shire. 

25. It is the peculiar policy of our general and State govern- 
ments, that the departments of government in each are distinct 
and independent of each other. 

26. These departments are co-ordinate branches of govern- 
ment, with separate powers and duties, in the exercise of which 
they act independently of each other. 

27. By the distribution of the powers of government among 
these departments, each is constituted, in its proper sphere, the 
immediate and co-equal representative of the people of the State, 
as the direct source of its authority, and the sole ultimate deposi- 
tory of the supreme power. 

28. Any questions as to the powers of g^ovemment and the 
constitutionality of laws are to be finally determined, in each State, 
by the judiciary thereof; there being an appeal from the court of 
the last resort of the State to the Supreme Court of the United 
States, in cases involving the construction of the federal Constitu- 
tion or the laws or treaties of the United States, (o) 



Co) Part I., cli. II ; Part 11. , ch. VL 



CH. I.] GOVERNMENTS OF THE SEVERAL STATES. 199 

Alteration or amendment of a State Constitution. 

29. The people of each State have a right to alter its form of 
government and its Constitution. It ia a principle implied in the 
nature of its political institutions, and expressly recognized by its 
Constitution. 

" The United States shall guarantee to every State in this Union 
a republican form of government." Cons, of U. S. A7i. lY 
Sect. 14. 

In most of the States, their Constitutions respectively contain 
provisions prescribing the mode in which they may be altered or 
amended. The methods thus provided for this purpose are various 
in the different States. 

In general, a State Constitution provides that it may be altered 
and amended by the joint action of the Legislature and a conven- 
tion of the people ; the Legislature being authorized, whenever 
they may agree, by a majority, or two-thirds of all the members 
elected, at two successive sessions, on any specific alterations or 
amendments to be proposed, to submit them to the people, in such 
manner and at such time, as the Legislature shall prescribe, for 
their adoption or rejection. 

" Any amendment or amendments to this Constitution maybe 
proposed in the Senate or Assembly ; and if the same shall be 
agreed to by a majority of the members elected to each of the two 
Houses, such proposed amendment or amendments, shall be entered 
on their journals, with the yeas and nays taken thereon, and refer- 
red to the Legislature then next to be chosen, and shall be pub- 
lished, for three months previous to the time of making such 
choice ; and if in the Legislature next chosen as aforesaid, such 
proposed amendment or amendments shall be agreed to by two- 
thirds of all the members elected to each House, then it shall be 
the duty of the Legislature to submit such proposed amendment or 
amendments, to the people, in such manner, and at such time, as 
the Legislature shall prescribe ; and if the people shall approve 
and ratify such amendment, or amendments, by a majority of the 
electors qualified to vote for members of the Legislature voting 
thereon, such amendment or amendments shall become part of 
this Constitution." Cons, of New York, 1821. 

According to this method, the amendments are submitted either 
to the people for their votes directly thereon, or to conventions of 
delegates chosen by the people for the purpose. 

In some States, it is constitutionally provided that the Legisla- 
ture of the State may at any time pass a law for taking the sense 
of the people on the subject of calling a convention of the people 
to revise the Constitution. 

In Alabama the Legislature, two-thirds of its members elected 



200 GOVERNMENTS OF TEE SEVERAL STATES. [PART H. 

agreeing thereto, may propose amendments to be voted upon 
directly by the people, and if agreed to by a majority of all the 
citizens of the State, and afterwards ratified by two-thirds of the 
Legislature, they shall be valid as parts of the Constitution of the 
State." 

In Indiana, its Constitution provides that " every twelfth year, 
at the general election, the votes of the people shall be taken as 
to whether they are in favor of calling a convention or not ; and if a 
majority of all the votes given shall be in favor of calling a con- 
vention, the Legislature shall provide by law for calling a conven- 
tion, which shall have it in power to revise, amend or change the 
Constitution. ' ' 

In some States, it is provided by their Constitutions that such 
amendments shall not be proposed, or conventions held, oftener 
than once -ndthin certain periods of time. 

In Xew Hampshire, its Constitution provides that the sense of 
the people as to a revision of the Constitution, and calling a con- 
vention for that purpose, shall be taken, in the method prescribed, 
at the expiration of every seven years. 

Where conventions are thus called, in pursuance of constitutional 
provisions ; in some instances, they can act only on the particular 
amendments proposed by the Legislature ; in other cases, they 
have in their power the subject of revision and amendment gen- 
erally. 

In the State of Vermont, there is a particular arrangement in 
its system of government, designed to prevent infractions of the 
Constitution, to adapt it to the emergencies of the times, and secure 
its permanence. The Constitution of the State provides that there 
shall be elected by the people every seven years a council of censors, 
composed of persons not connected with the legislative or ex- 
ecutive departments of the government, to exercise their powers for 
one year, " whose duty it shall be to inquire, whether the Con- 
stitution has been preserved inviolate in every part during the last 
septenary, including the year of their service, and whether the leg- 
islative and executive branches of government have performed 
their duty, as guardians of the people, or assumed to themselves, 
or exercised other or greater powers than they are entitled to 
bv the Constitution. They are also to inquire, whether the public 
taxes have been justly laid and collected in all parts of the com- 
monwealth ; in what manner the public monies have been disposed 
of; and whether the laws have been duly executed. For these 
purposes they shall have power to send for persons, papers and 
records ; they' shall have authority to pass public censures, to order 
impeachments, and to recommend to the Legislature the re- 
pealing of such laws as shall appear to them to have been passed 
contrary to the principles of the Constitution. The said council 



CH. I.] GOVERNMENTS OF THE SEVERAL STATES. 201 

of censors shall also have power to call a convention, to meet 
within two years after their sitting, if there appears to them an 
absolute necessity of amending any article of this Constitution, 
which may be defective ; explaining such as may be thought not 
clearly expressed ; and of adding such as are necessary for the 
preservation of the rights and happiness of the people : but the 
articles to be amended, and the amendments to be proposed, and 
such articles as are proposed to be added or abolished, shall be 
promulgated at least six months before the day appointed for the 
election of such convention, for the previous consideration of the 
people, that they may have an opportunity of instructing their 
delegates on the subject." Cons, of Vermont, 0/ 1793. 

In some States, their Constitutions respectively provide that 
amendments thereto may be finally adopted and made by the Leg- 
islature, being passed at two successive sessions thereof, with cer- 
tain forms, and by majorities, in some instances of two-thirds, in 
others of three-fourths, of all the members elected to each House, 
the amendments having been published, after their passage at the 
first session, for a prescribed time before the second session. It is 
so in Maryland, Delaware, Missouri. 

The Constitution of Virginia, recognizes in its Declaration of 
Rights "that a majority of the community hath an indubitable, 
unalienable and indefeasible right to reform, alter or abolish" the 
government, ' ' in such manner as shall be judged most conducive 
to the public weal, ' ' but contains no provision in regard to the 
mode of amending it. 

It is an admitted principle, that, independently of any constitu- 
tional declaration or provision, the people of a State, or a majority 
thereof, have a right to abolish, alter or amend its government 
and Constitution, by their clearly expressed will, made certain at 
any time or in any manner. 

The subject of amendments to the Constitution of a State is also 
noticed, and, in some respects more particularly, in treating of the 
duties and powers of the State Legislatures, {p) 

The original Constitutions of many of the States have been 
revised and amended. The amendments have, generally, been 
such as to place additional restrictions on those exercising the 
powers of government, to extend the right of suffrage, to increase 
the number of officers elegible directly by the people, and to operate 
in favor of popular rights. 

(p) See, further on, chap. IV. 



CHAPTER II. 

OF THE MUNICIPAL LAW, IN GENERAL, OP THE SEVERAL STATES 

1. Municipal law is the rule by which particular nations, com- 
munities or districts, are governed. It is otherwise defined to be 
a rule of civil conduct prescribed by the supreme power in a State. 

It is divided into written or unwritten law — or statute or common 
law. 

2. The wi'itten law, as generally defined, is the express written 
will of the legislature, rendered authentic by certain prescribed 
forms and ceremonies. It is the written will of the people of the 
nation or State, as an authoritative rule of action, formally declared 
through its representatives. 

The wi'itten law in this country consists of constitutions, treaties 
and statutes. The written law in a particular State includes the 
Constitution of the United States, the Constitution of the State, the 
Acts of Congress, and the Acts of the Legislature of the State. 

3. A Constitution of a State or nation is the written declaration 
of the will of the people, defining the form and powers of govern- 
ment, (a) The federal Constitution is the declaration of the sove- 
reign will of the people of the United States, uniting the people of 
the United States into one nation, for all national purposes ;(o) and 
the Constitution of each of the States is the declaration of the sove- 
reign will of a portion of the same people, uniting for municipal 
purposes, and constituting a State. (6) 

" The true view to be taken of our State Constitutions is, that 
they are forms of government, ordained and established by the 
people in their original and sovereign capacity, to promote their 
own happiness, and permanently secure their rights, property, in- 
dependence, and common welfare. 

The language of nearly every one of the State Constitutions is, 
that the people do ordain and establish this Constitution; and where . 
these terms are not expressly used, they are necessarily implied in 
the very substance of the frame of government. They may be 
deemed compacts, in the sense of their being founded on the volun- 
taiy consent or agreement of a majority of the qualified voters of 

(a) See Part tlie First, oliap. i. ii. &c. as to this definitiou, and the Con- 
stitution of tlie United States. 
(6) See Part the Second, chap. i. 
202 



CH. n.] LAWS OF THE SEVERAL STATES. 203 

the State. But they are not treated as contracts and conventions 
I)etween independent individuals and communities, having no com- 
mon umpire. In general the import is, that the people ordain and 
establish, that is, in their sovereign capacity meet and declare, 
what shall be the fundamental Law for the government of them- 
selves and their posterity. The constitution of a State is, then, to 
be treated as a fundamental laio, and not as a mere contract of 
\,overnraent during the good pleasure of all the persons who were 
originally bound by it, or assented to it. A Constitution is, in 
fact, a fundamental law, or basis of government, and falls strictly 
within the definition of law. 

A State Constitution is no further to be deemed a compact than 
that it is a matter of consent by the people, binding them to obedi- 
ence to its requisitions ; and its proper character is that of a fun- 
damental law, presci'ibed by the will of the majority of the people 
of the State, (who are entitled to prescribe it, ) for the government 
and regulation of the whole people." 1 Story on the Gons. p. 
306—311 

4. A treaty is commonly defined to be a solemn written compact, 
entered into between two independent nations, to regulate their 
intercourse. 

The power to make treaties is vested, in this country, in the 
President of the United States, with the concurrence of two-thirds 
of the Senate, (a) Treaties duly made are declared by the federal 
Constitution, to be "the supreme law of the land." They may, 
therefore, be called a part of the written law. 

5. A statute is a law duly enacted by the Legislature of a 
State or nation. Acts of Congress and the laws passed by the 
State Legislatures respectively, are statutes. 

6. Statutes are either lyuhlic or pynvate. A public statute is 
an universal rule or law that regards the whole community; private 
statutes operate upon particular persons or associations. Statutes 
are sometimes local, Ijeing limited in their operation to certain 
counties, townships, boi'oughs, or places in a State. 

t. A statute begins to take effect from its date, at the time of 
its passage, and finally becoming a law, unless it is otherwise pro- 
vided by the Constitution of the State, the statute itself, or by law. 

When a bill passed by a State Legislature is approved and 
signed by the GoTernor of the State ; or, being disapproved by him, 
is reconsidered and passed by the Legislature constitutionally ; or, 
where an Act is passed by a State Legislature, the approval thereof 
by the governor not being necessary ; such bill or Act becomes a 
law at the time of its being so approved and signed, or finally 
passed, respectively, which is its date, to take effect immediately, 

(a) See Part I, cliap, VIIL 32. 



204 LAWS or THE SEVERAL STATES, [PART 11. 

unless it be directed to the contrary, by the State Constitution, in 
the Act, or by law. 

In some of the States, it is the law that Acts of Assembly, or 
statutes, shall not begin to take effect until a certain time after 
their passage, except where a particular Act provides differently. 

' ' No law of a general nature shall, unless it be otherwise provi- 
ded, be enforced until sixty days after the passage thereof. " Cons, 
of Mississippi. 

' ' No Act of the General Assembly shall be in force until it shall 
have been published in print, unless in cases of emergency. " Cons, 
of Indiana. 

' ' No general law shall be in force until published. ' ' Gons. of 
California. 

8. Where statutes, in a State, are repugnant to each other in 
their provisions, the rule is, that the latest statute prevails ; and it 
is considered as repealing any prior statute so far as the provisions 
thereof are contrary to it. 

9. It is a general principle of law, that when a statute which 
repealed another statute is itself repealed, that the other statute is 
thereby revived. In some States a different rule is established by 
a general statutory provision. 

10. An Act of Congress, or a law of any of the States, may be 
adjudged to be unconstitutional and void. 

An Act of Congress maybe adjudged void, for being contrary to 
the federal Constitution ; and a law of a State for being contrary to 
the federal Constitution, or to an Act of Congress in pursuance 
thereof, or to the State Constitution ; by the proper courts of jus- 
tice, in the due administration of the laws, (c) It is more proper to 
say that such an Act or law may, for the reasons mentioned, be treated 
as null and void, and therefore disregarded, by a court of justice, in 
deciding matters within its jurisdiction and properly before it. 

11. What is unioritten or common law ? 

"The common law includes those principles, usages and rules 
of action, applicable to the government and security of person and 
property, which do not rest for their authority upon any express 
or positive declaration of the will of the legislature. ' ' 1 Kent's Com- 
Tnentai'ies on American Law, p. 448, 470. 

' ' Those parts of the law which, in England and here, are called 
unwritten, are so styled because their original institution and 
authority are not set down in writing, as Acts of Parliament or 
-of the State legislature are ; but they receive their binding force, 
and the power of laws, by long and immemorial usage, and universal 
reception : and the monuments and evidence of this common law 

(c) As to the constitutionality of statutes, see Part the First, chap, i, ii, 
aiid chap, iii, head " Acts of Congress." 



CH. n.] LAWS OF THE SETERAL STATES, 205 

are contained in the records of the several courts of jnstice, m 
books of reports and judicial decisions, and in the treatises of learned 
sages of the profession, handed down to us from the highest anti- 
quity. " 1 Black. Comm. p. 63, 1 Pennsylvania Black, p. 34, 

" The common law, as far as it is applicable to our institutions 
and government, has been recogniz^ed and adopted as one entire 
system by the Constitutions of Massachusetts, New York, jPfew Jer- 
sey and Maryland. It has been assumed by the courts of justice, 
or declared by statute, with the like modifications, as the law of 
the land, in every State. It was imported by our colonial ancestors, 
and was sanctioned by royal charter and colonial statutes. It is 
also the established doctrine that English statutes, passed before 
the emigration of our ancestors, and applicable to our situation, 
constitute a part of the common law of the country." 1 KenVs 
Comm. p. 472. 

' ' We have not under our federal government any common law 
considered as a source of jurisdiction ; while, on the other hand, 
the common law, considered merely as the means or instrument of 
exercising the jurisdiction conferred by the Constitution and laws 
of the Union, does exist, and forms a safe and beneficial system of 
national jurisprudence. 

Though the judiciary of the United States cannot take cogni- 
zance of offences at common law, unless they have jurisdiction over 
the person or subject matter given them by the Constitution or laws 
made in pursuance of it ; yet, when the jurisdiction is once granted, 
the common law, under the correction of the Constitution and sta- 
tutes of the United States, would seem to be a necessary guide in 
all cases, civil and criminal, not specially provided for by statute." 
1 Kenfs Comm. p. 448. 

In some of the States, as in Ohio, the courts have no common 
Jiw jurisdiction of crimes ; and they cannot treat an act as an of- 
fence, until the legislature has declared it to be such, and fixed the 
punishment therefor. 

12. The common law was the basis of the civil institutions of 
the colonies ; it was their scheme of jurisprudence, with only local 
exceptions suited to the condition of the colonists ; and it continued 
to be so after the colonies became States. '* At the adoption of 
the Constitution, there were no States in this Union, the basis of 
whose jurisprudence was not essentially that of the common law in 
its widest meaning ; and probably no States were contemplated in 
which it would not exist, "(a) It is recognized, in our federal 
jurisprudence, the Constitution of the United States and our 
judiciary Acts of Congress, referring to "cases in law and equity, " 
"suits at common law," "the common law, and the principles and 
usages of the law, ' ' with other terms taken from the same source, 
Ca) See 3 Peters, 446, 8. 
18 



206 LAWS OF THE SEVERAL STATES. [PART II. 

It was on the common law and constitutional law of England, 
that the people of the colonies and States justified their opposition 
to the government of that country, during the revolution ; claiming 
the benefits thereof as their birthright and inheritance ; as the 
security of their natural and civil rights, and of their political 
liberties. They asserted and maintained the rights and privileges 
of the Magna Charta of England, which embodied the common 
law, and made this their rallying point. And after the revolution, 
these principles were acknowledged and acted upon, as accordant 
with the genius of the people and the spirit of their institutions. 
The common law was declared by Act of Congress to be "the 
basis whereon these republics, their laws and constitutions, are 
erected ;" and which Congress fixed and established as that of all 
laws, constitutions and governments, to be forever thereafter form^ed 
in the Territory North-West of the Ohio. (&) 

It is from the common law, in its largest sense, have been taken, 
the grand right of representation, or that of the people to have a 
share in their government, by their representatives chosen by them- 
selves ; the policy of the distribution of the powers of government 
among several distinct departments ; the independence of the 
judiciary, in the interpretation of constitutional law, and in the 
administration of justice in its ordinary course ; the trial by jury ; 
the remedy by writ of Habeas Corpus ; and other maxims and 
rules of government and law, justly held to be so valuable and 
dear. 

It has been urged by the ablest statesmen and jurists, that r\ 
recurring to the source of those great principles on which our gen- 
eral and State governments are founded, they may be traced to the 
system of the English common law and constitution of government 
which attended our ancestors on their settling in this country. 

It is an important consideration that these views look to prac- 
tical results of great interest. It has been contended, that the 
common law, thus regarded, is the proper standard for the exposi- 
tion of the federal Constitution ; by which may be obtained a clear 
and settled understanding of its terms and provisions, on questions 
respecting its meaning ; " by applying to it those established rules 
and maxims of the common law, in the construction of statutes, and 
those accepted definitions of words, terms and language, in which 
they had been used and received, as well known and understood, 
in their ordinary and legal sense, according to their subject 
matter, "(c) 

It is in the common law that we find the rules of interpretation 

(b) Ordinance of 1787, for the government of tlie Territory North-West 
©f OMo. 

(c) Baldwin's Cons. Views, p. 3. 



CH. II.] LAWS OF THE SEVERAL STATES. 20T 

of Acts of Assembly and of the laws of the United States ; of 
public and private grants, charters, compacts, contracts ; and to 
which we resort, as the standard by which to make our decisions 
in all cases, where it has not been altered by established usage or 
legislative power, (d) 

13. Equity, in its technical sense, is that system of law by 
which justice is administered in a mode different from that at com- 
mon law. 

It means chancery laiv, or that system of rules by which courts 
of chancery are governed, in the administration of justice. 

In a court of equity or chancery, there is no trial by jury ; but 
the party complaining states his complaint in a bill of equity, and 
the party complained of makes his defense in a written answer. 
In such a court, the defendant may in any case, also, be required 
to make his answer, and disclose the facts, on his oath. 

14. This system of equity has been adopted in our country. 

In its principles, it has been adopted in most of the States ; in 
respect to its forms of proceeding, in only some of them. 

There are courts of chancery in many of the States ; as in Vir- 
ginia and New York, where the entire system of chancery proceed- 
ings has been adopted. 

Within those States where there are no courts of chancery, 
equity is administered in various modes. 

In some of those States the common law courts exercise chan- 
cery powers in their fullest extent ; as in Ohio. In other States 
equity principles are part of the common law, and carried out in 
suits and proceedings at law ; as in Pennsylvania. In Pennsylva- 
nia, however, it has been lately provided by Act of Assembly, 
that the courts may adopt the forms of chancery proceedings, in 
cases where a complete remedy cannot be otherwise afforded. The 
courts of the United States exercise chancery powers. 

Law of nations. 

15. The law of nations is that system of rules which reason, 

morality and custom have established among civilized, nations ; 

that code of public instruction which defines the rights, and pre- 
scribes the duties of nations, in their intercourse with each other. 
1 KenVs Comm. on American Law, p. 1. 

The law of nations depends entirely upon the rules of natural 
law, or upon mutual compacts, leagues, treaties and agreements 
between independent communities ; and in the construction of 
which compacts we have no rules to resort to but the law of nature ; 
that being the only law to which these communities are equally 
subject. 1 Black, Gomm. p. 43. 

(d) Baldwin's Cons. Views, p. 7. 



208 LAAVS OF THE SEVERAL STATES. [PAUT n. 

16. The law of nations is a part of the law of this country. 
The law of nations was part of the common law of England, 
which, so far as it may be consistent with the institutions of the 
country, and remains unaltered by statute, is an essential part of 
American jurisprudence. Its principles are recognized by the 
federal courts and embraced in the municipal law of the several 
States. 

The law of nations is enforced, in some instances, by the sanc- 
tions of municipal law ; and the offences which fall more immedi- 
ately under its cognizance are, the violations of safe conduct, in- 
fringements of the rights of ambassadors, and piracy. To these 
may be added the slave trade, not indeed, as a piratical trade, 
absolutely unlawful by the law of nations, but as a trade condemned 
by the great principles of justice and humanity, openly professed 
and declared by the powers of Europe. 1 Kenfs Comm. p. 1. 

Power to punish offences against the law of nations has been 
expressly conferred on Congress by the federal Constitution ; and 
Acts of Congress have been passed for that purpose, in reference 
to the above mentioned offences. 

The law of nations always formed a part of the municipal law 
in Pennsylvania. 1 Dallas^ Reports, p. 114, 120. 

It is under this head, in the law, are generally considered, the 
privileges of ambassadors and consuls of foreign governments, and 
their exemption from arrest under the law of the country ; also, the 
power of arresting persons for offences committed in another 
country, and the right of a government to demand of another 
government the surrender of criminals escaping into the territory 
of the latter. 

DIVTSIONS, AND DEFINITIONS, IN LAW. 

lY. The primary and principal objects of the law are rights 
and wrongs ; or the establishment of rights, and the prohibition 
of wrongs. 

18. Rights are divided into the rights of persons, being those 
which concern or are annexed to the persons of men ; and the 
rights of things, being such as a man may acquire over external 
objects, or things unconnected with his person. 

19. Wrongs are divided into private wrongs and public wrongs. 
Private wrongs being such as are an infringement of particular 
rights, concern individuals only, and are called civil injuries ; and 
public wrongs are those, which, being a breach of general law, 
affect the whole community, and are, therefore, called crimes and 
misdemeanors. 

20. Persons are divided into natural persons and artificial 
persons. Natural persons are such as the God of nature formed 
us ; artificial are such as are created and devised by human laws 



CH. n.] LAWS OP THE SEVERAL STATES. 209 

for the purposes of society and government, and are called corpo- 
rations and bodies politic. 

21. The rights of persons, considered in their natural capacities, 
are also of two sorts ; absolute and relative. Absolute are such as 
appertain and belong to men merely as individual or single persons ; 
relative such as are incident to them as members of society, and 
standing in various relations to each other. 

22. The absolute rights of individuals may be reduced to three 
principal or primary articles ; the right of personal security, the 
right of personal liberty, and the right of private property. 

23. Persons may be considered, in respect to their civil rela- 
tions, as public or private. Public persons are all those who 
occupy official relations ; all others are private. 

Corporations. 

24. A corporation is a franchise, or civil right and privilege, 
possessed by one or more individuals, who subsist in a body politic, 
under a special denomination, and are vested, by the policy of the 
law, with the capacity of perpetual succession, as an individual. 

25. Corporations are divided into aggregate and sole. A cor- 
poration sole consists of a single person, who is made a body cor- 
porate or politic, in order to give him some legal capacities and 
advantages, and especially that of perpetuity, which as a natural 
person he could not have. The corporations with us are generally 
aggregate, or the union of two or more persons in one body politic, 
with capacity of succession and perpetuity. 

26. Corporations are further divided into ecclesiastical and 
lay. Ecclesiastical corporations are those of which the members 
are spiritual, and the object is also spiritual. With us, they are 
called religiotis corpoi'ations. 

21. Lay corporations are divided into eleemosynary and civil. 
An eleemosynary corporation is a private charity, constituted for 
the perpetual distribution of the alms and bounty of the founder. 
In this class are ranked hospitals for the relief of poor, sick, and 
impotent persons, and colleges and academies established for the 
promotion of learning and piety, and endowed with property by 
public and private donations. Civil corporations are established 
for a variety of purposes. 

28. Civil corporations are either public or private. Public 
corporations are such as are created by law for political purposes, 
as counties, cities, boroughs ; they are vested with subordinate legis- 
lative powers, to be exercised for local purposes connected with the 
public good, and such powers are subject to the control of the legis- 
lature of the State. 2 Kent's Gomvi. chajy. XXXIII. 

Public corporations are those which are founded with public 
means, and for public purposes. Their criterion is, that no indi- 

18* 



210 LAWS OF THE SEVEBAL STATES. [PART II. 

vidua! has any interest in their foundation, except as a member of 
the general body politic. To this class belong all municipal cor- 
porations, beginning with the United States, and descending down 
through States, counties, townships, school districts, and the like. 
These are for the most part denominated quasi corporations, since 
with the exception of cities and boroughs, they require no special 
Act of incorporation. 

Private corporations are those which are founded on private 
means ; their objects may be either public or private ; their criterion 
is a private foundation, whereby individuals have an interest in them 
distinct from that of the community. Walker^s American Laiv, 
p. 201. 

29. A bank created by the government for its own uses, where 
the stock is exclusively owned by the government, is a public cor- 
poration. So, a hospital created and endowed by the government 
for general purposes, is a public, not a private charity. But a 
bank, whose stock is owned by private persons, is a private corpora- 
tion, though its operations partake of a public nature, and though 
the government may have become a partner in the association by 
sharing with the corporators in the stock. The same may be said 
of insurance, canal, bridge, turnpike, and rail road stock. 2 KenPs 
Comm. p. 215. 

30. Some of the leading properties of a corporation are : 

(1 ) That a corporation has uninterrupted succession, so long 
as its charter or the law incorporating it endures, independently of 
the death or a change of its members. 

(2 ) All the acts which a corporation can do, are done in its 
corporate name, without any specification of its members. 

(3 ) Corporations are authorized to have and use a corporate 
seal. 

(4 ) Corporations are authorized to make by-laws, consistently 
with the provisions of its charter or Act of incorporation, and the 
laws of the land. 

(5) The individual members of a corporation are not person- 
ally liable for its debts, beyond the amount of their shares in the 
capital stock ; unless they are expressly made so by the charter or 
Act of incorporation, or by law. 

31. A corporation is generally created by an Act of the Legis- 
lature of the State. 

A State legislature may create corporations, by virtue of the 
general powers vested in it, unless it is expressly prohibited by the 
Constitution of the State. In some States the power is expressly 
granted by the Constitutions thereof ; and in some instances, the 
power is limited or modified, (e) 

32. Does Congress possess power to create corporations ? The 
(e) See further on, cliap. Ill, IV. 



CH. II.] LAWS OF THE SEVERAL STATES. 211 

federal Constitution confers no express power on Congress to create 
corporations. It can only exist as an incidental power. It has 
been exercised as such in the incorporation of a national bank. 

In some States the courts of justice are authorized to create cor- 
porations for certain purposes. 

Persons, adults and infants, 

33. When is a person of full age, capable of making contracts, 
and of acting for himself, in law ? 

Full age in males and females, is twenty-one years ; which age 
is completed on the day preceding the anniversary of a person's 
birth, who until that time is an infant, and so styled in law. 
1 Black. Conini. p. 463. 

The age of twenty-one years is probably the period of absolute 
majority throughout the United States ; though female infants, in 
some of the States, have enlarged capacity to act at the age of 
eighteen. In Vermont and Ohio females are deemed of age at the 
age of eighteen years. And Louisiana follows in this respect the 
common law period of limitation, though entire majority in the 
civil law, as to males as well as females, was not until the age of 
twenty-five. 2 KenVs Gomm. p. 236. 

Persons, males and females. 

34. What are the capacities of females in law ? 

Females have no political capacity ; that is, they have no direct 
voice or agency in the formation or administration of government. 
While they remain unmarried their legal capacities are the same as 
those of the other sex. When married they are placed under vari- 
ous disabilities. 

Citizens and aliens. 

35. How may private persons be divided ? 

Into citizens and aliens. Citizens are, generally, all free persons 
born within the United States, and all persons duly naturalized. 

Aliens are persons born out of the jurisdiction of the United 
States, and being the citizens or subjects of another nation or gov- 
ernment. (/) 

36. In most of the several States, there is a distinction in respect 
to political privileges between free white persons and free colored 
persons of African blood ; and in no part of the country, except 
in Maine and Massachusetts, do the latter, in point of fact, parti- 
cipate equally with the whites, in the exercise of civil and political 
rights. 

C/) As to citizens and aliens, their rights and privileges, see Part the First, 
chap. i. p. 27, 28. and as to the naturalization of aliens, Part I. cliap. Hi. 
p. 67, 58, 



212 LAWS or THE SEVERAL STATES, [PART U. 

The right of voting is confined to white freemen, in express terms, 
by the Constitutions of all the States, except ]S"ew York, Massa- 
chusetts, Rhode Island, Yermont, Xew Hampshire, Maine, Wis- 
consin ; and by that of Georgia it is declared that the electors shall 
be citizens of the State. By the Constitutions of Michigan and 
Wisconsin it is provided that the right of suffrage may be allowed 
to civilized Indians, not belonging to any tribe. 

" Xegro and other slaves, born within and under the allegiance 
of the United States, are natural born subjects but not citizens. If 
a slave born in the United States be manumitted, or otherwise 
lawfully discharged from bondage, or if a black man be bom within 
the United States, and born free, he becomes thenceforward a 
citizen, but under such disabilities as the laws of the States res- 
pectively may deem it expedient to prescribe to free persons of 
color." 2 Kenfs Comvi. p. 257, in note. 

The right of suffrage, or voting at the general or other elections, 
varies in the different States, (g) 

Slaves. 
31. Domestic slavery having commenced at an early period, in 

this country, continued and increased throughout the States 
while they were colonies of Great Britain. It exists now in all the 
southern States of the Union ; but it has become extinct in all the 
eastern States, and in New York and Pennsylvania, having been 
abolished therein by their Constitutions or laws. In the ordinance 
of Congress, of July 13, 1T8T, for the government of the temtory 
of the United States north-west of the river Ohio, it wag enacted, 
and declared to be an unalterable provision, that there should not 
be slavery, nor involuntary servitude, in the said territory, otherwise 
than in the punishment of crimes. This provision prevented the 
introduction of slavery into any of the States north of the river 
Ohio, and included in what was then called the Xorth- Western 
Territory of the United States, to wit : Ohio, jVlichigan, Indiana, 
Illinois ; and the Constitutions thereof prohibit it. It exists in 
Louisiana, Missouri, Florida, Texas, Alabama, Mississippi, Ar- 
kansas, It is prohibited by the Constitutions of the States of Iowa, 
Wisconsin and California. (7?) 

In the slaveholding States, ' ' in the contemplation of their laws, 
slaves are considered, in some respects, as things or property, rather 
than as persons, and are vendible as personal estate. They cannot 
take property, by descent or purchase, and all they find, and all 
they hold, belongs to the master. They cannot make lawful con- 
tracts, and they are deprived of civil rights. They are assets in 

(g) See as to the riglit of suffrage, furtlier on, Part II, cliap. iv, par, 
58, and chap. vii. par. 7, 8. 

(h) See the next following chapter- 



CH. n.] LAWS OF THE SEVERAL STATES. 213 

the hands of executors for the payment of debts ; and cannot be 
emancipated by will or otherwise, to the prejudice of creditors. ' ' 
2 KenVs Gomm. p. 253. 

The laws that regard slaves as property, are local, and only 
apply so far as such laws can operate. Such local laws do not 
make them personal property generally. 18 Pickens'' Beports, 
p. 216. 

The state of slavery is a mere municipal regulation, depending 
upon the laws of the country or State under which it exists, and 
no nation or State is bound to recognize the state of slavery as to 
foreign slaves within its territory. It is so as between the States 
of this Union, except so far as the provisions of the federal Consti- 
tution extend. This principle was contained in the decision of the 
Supreme Court of the United States, made in 1838, in the case 
of Prigg V. The Commonwealth of Pennsylvania, reported in 16 
Peters'' Reports, p. 539. 

The constitutional provisions in some of the States relative to 
slaves, are noted, under proper heads, in this part of the work, [i) 

Division of time. 

38. A year, in law, is a determinate period, consisting of three 
hundred and sixty-five days ; the increasing day in leap year to- 
gether with the preceding one, being accounted for one day only. 

A year includes the space of time from a certain day in a parti- 
cular month until the same day in the same month in the succeed- 
ing year ; one of the days being included and the other excluded. 

39. A mouth in law, in this country, means a calendar month. 
In some of the States it is so provided by statute. 

• 40. As to a day, in law, in the space of a day all the twenty- 
four hours are generally reckoned ; the law usually rejecting all 
fractions of a day in order to prevent disputes. Therefore, if I am 
bound to pay money on a certain day, I discharge the obligation 
if I pay it before twelve o'clock at night, after which the following 
day commences. Fractions of a day are, however, regarded in 
some matters, as in recording deeds, and the like. Particular rules 
prevail, in law, as to negotiable or commercial paper. 

Territorial divisions. 

41. What are the general divisions of a State for civil purposes? 

A State is generally divided into counties ; each county into 
townships or towns, hundreds or parishes ; and each township into 
districts or precincts. A county may contain a city ; and town- 
ships include boroughs, towns and villages. In some States there 
are other territorial divisions, in relation to the militia, common 
schools, and other matters, (j) 

(i) See the general Index, for Slave, &c. (j) See further on, ch. VII. 



CHAPTER III. 



OF THE DECLARATION OP RIGHTS IN A STATE. 

1. That part of the Constitution of a State in which are de- 
clared and contained certain general principles, prohibitions and 
provisions, in relation to the rights of the people and the powers 
of government, is called the Declaration or Bill of Rights. 

2. These rights may be called . the declared and peremptory 
rights of the people. They are defined by the Constitution of the 
State. 

There is a division of rights peculiar to us as citizens of a free 
and constitutional government ; viz. those xohich are defined hy 
the Constitution, and those which are not. The former may be 
designated as imperative or peremptory ; since they are made the 
foundation of our social relations, and cannot be altered by dele- 
gated power. The people alone in their sovereign capacity can 
change them, by altering the Constitution. The latter may be 
called discretionary, siuce they depend upon the action of the 
Legislature, (o) 

3. There exist such Declarations of Rights in the States gene- 
rally. In some of the States they are not formally stated, but the 
principal provisions of them are embodied in the Constitutions. 

4. Similar declarations of the rights of man have been made in 
most of the States, when they were colonies, and from the earliest 
periods of their history. 

5. What was the great announcement of the fundamental rights 
of man in this country ? 

The Declaration of Independence of the North American States, 
July 4, 1776. 

6. There is no such formal declaration of rights in the Consti- 
tution of the United States ; but it contains many provisions, de- 
claring these rights, and designed for their protection ; particularly 
in the Amendments thereto. 

7. In regard to the authority and force of the principles and 
provisions contained in the Bill of Rights of a State, or embraced 
in its Constitution, they are binding in all the departments of the 
government thereof, and on the people, in all cases, above other 

(a) See Part L chap. I, par. 37, and chap. YII, par. 2. 
2U 



CH. III.] STATE BILLS Or RIGHTS. 215 

provisions of the Constitution, and above the law, commou aud 
statute, of the State. 

It is generally declared in these Bills of Rights, ' ' that all things 
contained therein are reserved and excepted out of the general 
powers of government, and shall forever remain inviolate ; ' ' and 
"that all laws contrary thereto are void." 

8. The purposes and objects for which these Declarations of 
Rights were made, as stated in them, are, " that the general, great 
and essential principles of free government may be recognized and 
established." 

9. These Declarations of Rights are worthy to be fully consi- 
dered, and made familiar to the mind, for their evident truth, su- 
preme authority, and important bearings ; as they are, also, from 
the solemn circumstances under which our forefathers enunciated 
them, and the pure, noble and liberal sentiments which called them 
forth. 

They announce clearly, freely and boldly, the great fundamental 
and unchangeable principles of human rights ; they contain the 
soundest maxims on political government, derived from wisdom 
and experience ; and they present the most just, safe and humane 
views of civil law and its administration. 

Wise and righteous tenets, nobly avowed and maintained ; happy 
will it be for our country that a consistent support and impartial 
application of them may long secure their proper benefits! 

Bills of Rights, declaring and fixing certain principles of govern- 
ment for the protection of the rights of the people, have been used, 
at different times, in England. The first one was made there, and 
acceded to by the king, in the year 1225 ; being the celebrated 
Magna Gharta of that country. 

In some of the State Coustitutions, the appreciation of these general rights 
is marked by the expression of gratitude to God for their possession, and 
the freedom enjoyed in establishing a free government. 

" We, therefore, the people of Massachusetts, acknowledging with grate- 
ful hearts, the goodness of the Great Legislator of the Universe, in affording 
us, in the course of his providence, an opportunity deliberately and peace-" 
ably, without fraud, violence or surprise, of entering into an original, ex- 
plicit and solemn compact with each other ; and of forming a new constitu- 
tion of civil government for ourselves and posterity ; and devoutly implor- 
ing his direction in so interesting a design, do agree upon, ordain and estab- 
lish the following Declaration of Rights, and frame of government, as the 
Constitution of the Commonwealth of Massachusetts." Co7is. of Massa- 
chusetts. 

" Grateful to God for the civil and religious liberty which he hath so long 
permitted us to enjoy, and looking to Him for his blessing upon our en- 
deavours to secure and transmit the same, unimpaired, to succeeding gene- 
rations, do ordain and establish this constitution of government." Cons, 
of Rhode Island, Illinois. 



216 STAIE BILLS Or EIGHTS. [PABT U. 

" Acknowledging -n-itli gratitude the good providence of God, in having 
permitted them to enjoy a free government," &:c. Cons, of Connecticut. 

" Grateful to God for our freedom." Cons, of New York, Ohio, Wisconsin. 

" Through divine goodness all men have, by nature, the rights" --Cons, 
of Delaware. 

" Grateful to Almighty God for our civil and religious liberty.' Cons, 
of Maryland. 

" Grateful to Almighty God for the free exercise of the right to choose 
our own form of government." Cons of Indiana. 

" Acknowledging vritli gratitude the grace and beneficence of God in per- 
mitting us to make a choice of our form of government. " Cons, of Texas. 

" Grateful to the SuiDreme Being for the blessings hitherto enjoyed, and 
feeling our dependence on Him for a continuation of those blessings. "Cons. 
of Iowa. 

Equality of rights. 

10. The State constitutions, in general, contain provisions de- 
claring the equality of the rights of all men. 

Such are the provisions in the Constitutions of many of the 
States : ' ' That all men are born equally free and independent, and 
have certain natural, inherent, and inalienable rights ; among which 
are the enjoying and defending life and liberty, acquiring, possess- 
ing and protecting property ; and pursuing and obtaining happi- 
ness and safety." 

' ' And that no men, or set of men, are entitled to exclusive emolu- 
ments and privileges, but in consideration of public services." 
See head, ' ' Hereditary titles and privileges, ' ' further on, in this 
chapter. 

In the Constitution of the State of Delaware it is declared; 
" Through divine goodness all men have, by nature, the rights of 
worshipping their Creator according to the dictates of their con- 
sciences, of enjoying and defending life and liberty, of acquiring 
and protecting reputation and property, and, in general, of attain- 
ing objects suitable to their condition, without injury by one to 
another ; ' ' &c. 

In some of the States the provision is, " That all men, when 
they form a social compact, are equal in rights." Cons, of Con- 
necticut-, Texas. 

In the States of Kentucky, Mississippi, Alabama, the provision 
is; "That all fi'ee men, when they form a social compact, are 
equal in rights. " 

There is no such provision in the Constitutions of Xew York, 
Maryland, Xorth Carolina, South Carolina, Georgia, Tennessee, 
Louisiana, Missouri. 

It is meant by the declaration in these provisions that all men 
are born equally free and independent, as to essential rights, that 
all men are entitled to equal civil and political rights. 

11. The same principle is contained in the Declaration of In- 
dependence of the United States. 



en. ni.] STATE BILLS OF RIGHTS. 211 

' ' We hold tliese tniths to be self-evident ; that all men are 
created equal ; that they are endowed by their Creator with certain 
inalienable rights ; that among these are life, liberty and the pur- 
suit of happiness ; and that to secure these rights, government was 
instituted among men, deriving their just powers from the consent 
of the governed." 

Origin and object of civil government. 

12. The principle in relation to the source, authority and end 
of civil government, contained in these Bills of Rights, is, that all 
government, of right, originates from the people, is founded on 
their consent, and instituted for the general good. 

13. It is declared in some of the State Bills of Rights ; " that 
a frequent recurrence to the fundamental principles of civil gov- 
ernment is absolutely necessary to preserve the blesssings of liberty." 

Supreme power of the people. 

14. It is the declared principle in the State constitutions, as to 
the supreme power of the people, that all power is inherent in the 
people ; that governments are founded on their authority ; and may 
be abolished, altered and reformed by them as they may think 
proper. 

The principle is fully announced in the Declaration of Independ- 
ence, by the States, in 1716. 

' ' That to secui'e Miese rights, governments are instituted among 
men, deriving their just powers from the consent of the governed; 
that whenever any form of government becomes destructive of these 
ends, it is the right of the people to alter or abolish it, and to in- 
stitute a new government, laying its foundations on such principles, 
and organizing its powers in such form, as to them shall seem most 
likely to effect their safety and happiness." 

The State constitutions, in general, contain provisions directing 
in what manner they may be altered and amended. In the con- 
stitution of Virginia there is no such provision. 

Internal government and police of a State. 

15. The principle declared on this subject is, that the people 
of the State have the inherent, sole and exclusive right of regu- 
lating the internal government and police thereof. 

' ' The people of the State have the sole and exclusive right of 
governing themselves as a free, sovereign and independent State, 
and do, and forever shall, exercise and enjoy every power, jurisdic- 
tion and right appertaining thereto, which is not, or may not here- 
after be, by them, expressly delegated to the United States of 
America in Congress assembled. " Constitutions of New Hamp- 
shire and Massachusetts. 

19 



218 STATE BILLS OP RIGHTS. [PART H. 

Distribution of the powers of government. 

16. In some of the States it is declared "that the legislative, 
executive and judicial departments of government ought to be for- 
ever separate and distinct from each other." 

' ' In the government of the commonwealth the legislative depart- 
ment shall never exercise the executive and judicial powers, or either 
of them ; the executive shall never exercise the legislative and ju- 
dicial powers, or either of them ; and the judicial shall never exer- 
cise the legislative and executive powers, or either of them ; to the 
end that it maybe a government of laws and not of men." Mas- 
sachusetts. 

This subject is treated of in Part II, Chap. I. 

Religious liberty and rights of conscience. 

1*1. It is generally provided that no preference shall be given 
by law to any religious establishment or mode of worship ; that all 
men have a right to worship God according to the dictates of their 
owa. consciences ; and that no man can be compelled to attend or 
support any place of worship, or to maintain any ministry. 

In some of the State Bills of Rights, the right of every individual 
to religious liberty, and to worship God according to the dictates 
of his conscience, is declared; " provided he doth not disturb the 
public peace, or disturb others in their religious worship. "(6) In 
other States it is provided, "that this right shall not be so con- 
strued at to excuse acts of licentiousness, or to justify practices 
inconsistent with the peace and safety of the State, "(c) 

In the Constitution of the State of Massachusetts, it is declared, 
in connection mth similar provisions, ' ' that it is the right as well 
as the duty, of all men in society publicly, and at stated times, to 
worship the Supreme Being, the great Creator and Preserver of 
the Universe." And in the Constitution of Yermont, " neverthe- 
less, every sect or denomination of Christians ought to observe the 
Sabbath or Lord's day, and keep up some sort of religious worship, 
which to them shall seem most agreeable to the will of God." 

In some of the States it is thus provided, ' ' that the civil rights, 
privileges or capacities of any citizen shall in no way be diminished 
on account of his religious opinions;" and "that no person on 
account of his religious opinions can be rendered ineligible to any 
ofl&ce of trust or profit in the State. ' ' 

In some of the States it is provided by their Constitutions, that 
no minister of the gospel or priest of any denomination, shall at 
any time hold any ci-vdl or military office in the State, or be a mem- 
ber of the Legislature thereof. New York and Delaware. 

(b) Cons, of New Hampshire. (c) Cons, of Connecticut. 



CH. ni.] STATE BILLS OP RIGHTS. 219 

It is generally provided, " that no subordination or preference 
of any one sect or denomination to another, shall ever be established 
bylaw,'' and "that no preference shall be given by law to any 
religious societies, denominations, or modes of worship." 

In the States of Maine, Massachusetts and New Hampshire, it 
is provided in their Bills of Rights, ' ' that all religious societies in 
the State, whether corporate or incorporate, shall at all times have 
the exclusive right of electing their public teachers, and contract- 
ing with them for their support and maintenance." 

In Maryland the declaration is, " That it is the duty of every 
man to worship God in such manner as he thinks most pleasing to 
him : all persons professing the Christian religion are equally enti- 
tled to protection in their religious liberty, ' ' &c. 

In Virginia it is thus declared, "That religion, or the duty 
which we owe to our Creator, and the manner of discharging it, 
can be directed only by reason and conviction, not by force and 
violence ; and therefore all men are equally entitled to the free 
exercise of religion, according to the dictates of conscience, and 
that it is the mutual duty of all to practise Christian forbearance, 
love and charity towards each other. ' ' 

" No man shall be compelled to frequent or support any religious 
worship, place or ministry whatsoever ; nor shall any man be en- 
forced, restrained, molested or burtheued in his body or goods, or 
otherwise suffer, on account of his religious opinions or belief ; but 
all men shall be free to profess, and by argument to maintain, theiv 
opinions in matters of religion, and the same shall in no wise affect, 
diminish or enlarge their civil capacities. And the Legislature 
shall not prescribe any religious test whatever ; nor confer any pe- 
culiar privileges or advantages on any sect or denomination ; nor 
pass any law requiring or authorizing any religious society, or 
the people of any district within this commonwealth, to levy ou 
themselves or others any tax for the erection or repair of any house 
for public worship, or for the support of any church or ministry ; 
but it shall be left free to every person to select his religious in- 
structor, and make for his support such private contract as he shall 
please." Virginia. 

In the Constitutions of Mississippi and California it is also de- 
clared, "the exercise and enjoyment of religious profession and 
worship, without discrimination, shall forever be free to all persons 
in the State ; Provided, that the light hereby declared and estab- 
lished shall not be so construed as to excuse acts of licentiousness, 
or justify practices inconsistent with the peace and safety of the 
State." 

In the State of Missouri it is provided in its Declaration of 
Rights, ' ' That no religious corporation can ever be established in 
this State." 



220 STATE BILLS OF EIGHTS. [PAST II. 

The provision in tlie Constitution of the United States as to reli- 
gious liberty is, " Congress shall make no law respecting an estab- 
lishment of religion, or prohibiting the free exercise thereof." 
Cons, of U. S., Amendments, Art. I. 

18. There are provisions in all these Bills of Rights recognizing 
and securing the rights of conscience. 

The right of conscience is declared to be among the natural and 
inalienable rights of man. 

" No person can be hurt, molested or restrained in his religious 
professions or sentiments, if he do not disturb others in their reli- 
gious worship. " State of JVeio Yo7^k. 

In most of the States it is thus declared, ' ' that no person who 
is conscientiously scrupulous about the lawfulness of bearing arms 
shall be compelled thereto, provided he pay an equivalent. " 

" The Legislature shall pass laws exempting citizens belonging 
to any sect or denomination of religion, the tenets of which are 
known to be opposed to the bearing of arms, from attending private 
and general musters. ' ' Cons, of Tennessee. 

As to oaths. 

19. In some of the State Bills of Rights there are provisions 
respecting the mode of taking an oath. 

In such instances, in general, it is declared that the manner of 
administering an oath to any person shall be such as those of the 
religious profession or denomination, to which such person belong, 
generally esteem the most effectual confirmation by the Divine 
Being. 

' ' The manner of administering an oath or affirmation shall be 
such as is most consistent with the conscience of the deponent, and 
shall be esteemed the most solemn appeal to God. " 

20. It is also generally provided that persons conscientiously 
scrupulous of taking an oath, shall be allowed to make their solemn 
affirmations, to be of the same avail as an oath. 

See, further on in this chapter, the heads "Religious tests," 
*' Freedom of speech, &c.," " Rights to bear arms," " Eligibility 
to office." 

Such provisions are designed to meet the cases of persons who 
are conscientiously scrupulous of taking an oath in a particular 
form, or of swearing at all. 

"No person shall be rendered incompetent to be a witness on 
account of his opinions on matters of religious belief. " Cons, of 
California. 

As to religious tests. 

21. It is generally provided in the State Constitutions, that no 
religious tests shall be required as a qualification to office. 



CH. in.] STATE BILLS OF RIGHTS. 221 

In some of the States the constitutional provision is, that no 
person who acknowledges the being of God, and a future state of 
rewards and punishments, shall be disqualified on account of his 
religious sentiments to hold any office under the State. 

In other States it is declared, " that no religious test shall ever 
be required as a qualification to any office or public trust under the 
State." See, also, the Cons, of the United States, Art. YI. S, 

Religious toleration. 

' ' No person who denies the being of God, or a future state of 
rewards and punishments, shall hold any office in the civil depart- 
ment of the State." Cons, of Tennessee, Mississippi. 

22. The effect of these provisions in the federal and State Con- 
stitutions is, that there is thus secured complete religious toleration 
in this country. It may be more properly called religious liberty. 

Our forefathers emigrated from the tyrannical and oppressive 
governments of Europe, and settled in this country, for the sake, 
chiefly, of enjoying freedom of religion and the rights of con- 
science. They avowed these principles and acted upon them from 
the earliest period ; maintained them amidst severe trials and ad- 
versity ; and, on attaining independence, established them, in the 
general government and the States, as the fundamental supreme 
law. 

Hereditary titles and privileges. 

23. It is generally declared in the Bill of Rights, or Constitu- 
tion of a State, ' ' that the Legislature shall not grant any titles of 
nobility or hereditary descent. ' ' 

" No hereditary titles, honors or emoluments, shall ever be con- 
ferred in this State. ' ' Connecticut, North Carolina. 

' ' No office or place whatsoever, in government, shall be here- 
ditary ; the ability and integrity necessary in all not being trans- 
missible to posterity or relations. " New Hami^shire. 

24. There is a prohibition upon the States respectively, on this 
subject in the federal Constitution. 

" No State shall;" — " grant any title of nobility." Cons, of 
U. S. Art. I. Sec. X. 

The federal Constitution provides ; "No title of nobility shall be 
granted by the United States ; and no person, holding any office 
of profit or trust under them, shall, without the consent of Con- 
gress, accept of any present, emolument, office or title, of any kind 
whatever, from any king, prince or foreign State. " Cons, of U. S. 
Avt. I. Sec. X. 7. 

Gifts from foreign States. 

25. In the Bill of Rights of the State of Maryland, it is de- 

19* 



222 STATE BILLS OF RIGHTS. [PART II. 

clared ; "Xor ought any person in public trust to receive any 
present from any foreign prince or State, or from the United States, 
or any of tliem, without the approbation of this State." 

Liberty of speech and the press. 

26. In general, the provision on this subject in the State Bills 
ttf Rights is : That every citizen has a right to speak, write or print 
upon any subject, being liable for the abuse of that liberty. And 
that the printing presses shall be open and free to every citizen who 
wishes to examine the proceedings of any branch of government, 
or the conduct of any public officer 5 and that no law shall be 
passed to restrain the right thereof. 

' ' The liberty of the press is one of the great bulwarks of liberty, 
and therefore ought never to be restrained." North Carolina. 

' ' The liberty of the press is essential to the security of freedom 
in a State, and ought to be inviolably preserved. ' ' New Hamp- 
shire. 

' ' Congress shall make no law abridging the freedom of speech, 
or of the press." Cons, of U. S. Amendments, Art. I. 

Law of libels, 

27. There are generally contained in these Bills of Rights cer- 
tain provisions as to prosecutions for libels. For the most part, 
they provide that in prosecutions for any publication respecting the 
official conduct of public officers, or where the matter is proper for 
public information, the truth may be given in evidence. 

In the State of Missouri the provision is ; "In all prosecutions 
or indictments for libel, the truth may be given in evidence ; and 
if it shall appear to the jury that the matter charged as libellous is 
true, and was published for good motives and justifiable ends, the 
party shall be acquitted ; and the jury shall have the right to de- 
termine the law and the facts." 

The common law doctrine, on this point, in relation to libels, is, 
that on indictments for libels, which are written or printed abuse, 
the truth cannot be given in evidence. 

Libels on individuals are defined to be malicious defamations, 
expressed either in writing, or by printed signs and pictures, tend- 
ing to blacken the memory of one that is dead, or the reputation 
of one who is alive, and thereby exposing him to public hatred, 
contempt and ridicule. 

The criminality of such libels is held, in law, to consist in their 
tendency to disturb the public peace, which is the same whether the 
libel be true or false ; and therefore, at common law, the truth of 
the matter contained in an alleged libel cannot be given in evidence 
on an indictment for it, in justification or defence of it. 



CH. in.] STATE BILLS OF RIGHTS. 223 

28. As to the powers of jurors on indictments for libels, it is 
generally declared, that in all indictments for libels, the jury shall 
have the right to determine the law and facts, under the direction 
of the court, as in other cases. 

Equal representation. 

" Representation shall be apportioned according to population. " 
Cons, of California. 

Right of the people to assemble. 

29. It is generally contained in the Declaration of Rights of a 
State, as follows : 

' ' The people shall have the right peaceably to assemble ; " or, 
' ' That the people have a right, in an orderly and peaceable manner, 
to assemble together for their common good ; to instruct their re- 
presentatives, and to apply to those invested with the powers of 
government for redress of grievances, or for other purposes, by ad- 
dress or remonstrance. " Tennessee, Mississippi, &c. 

In the federal Constitution it is declared, " Congress shall make 
no law" — " abridging the right of the people peaceably to assem- 
ble, and to petition the government for a redress of grievances." 
Cons, of U. S., Amendments, Art. I. 

' ' The citizens have a right, in an orderly manner, to meet toge- 
ther, and apply to persons intrusted with the powers of government 
for redress of grievances and other proper purposes, by petition, 
remonstrance or address. . " Delaivare, Connecticut, &c. 

Right of petition. 

30. The right of petition is secured. It is generally provided 
in the Bill of Rights of a State, that the people have a right to 
apply to the Legislature, and those invested with the powers of 
government, for redress of grievances, and other purposes, by pe- 
tition, address or remonstrance. 

The right of the people to petition government for the redress 
of grievances is secured by the federal Constitution. 

See the references under the next preceding head. 

In some of the States the right of the people ' ' to instruct their 
representatives," is thus declared and secured. 

This right of the people to petition government, for objects 
within its powers, besides being thus expressly secured, is clearly 
implied by the relation between those that govern and those that 
are governed, and especially by the nature of our republican insti- 
tutions, the rulers here being the representatives of the people, and 
all government being established for their common benefit. 

The people having a right to petition ; there is an obligation on 
the government to receive and consider their petitions. 



224 STATE BILLS OF RIGHTS. [PABT II. 

The reason for thus solemnly asserting these principles, so self- 
evident, in regard to the right of the people to assemble and peti- 
tion government, probably was, that in England important restric- 
tions were laid upon the exercise of these rights. 

Security of property frovii puhlic use. 

31. These Bills of Rights provide for the security of private 
property from public use. 

Generally, the provision is, that private property shall not be 
taken for public use without just compensation. 

In some States it is added to such a provision, ' ' nor unless the 
public exigencies require it." 

' ' Private property ought to be subservient to public uses, when 
necessity requires it ; nevertheless, when any person's property is 
taken for the use of the public, the owner ought to receive an equi- 
valent in money." Cons, of Vermont. 

" No man's particular services shall be demanded, nor property 
taken or applied to public use, without the consent of his repre- 
sentatives, or without a just compensation made therefor. " Cons, 
of Indiana. 

32. In the federal Constitution it is provided, " Xor shall pri- 
vate property betaken for public use, without just compensation." 
Cons, of U. S. Amend. Art. Y. The provision only applies to 
the United States. 

It is necessary to carry on the operations of government, that 
private property should be liable to be used for public purposes, 
compensation being made therefor ; otherwise it might be in the 
power of individuals to prevent the most important public improve- 
ments in the country. Private property is then taken under autho- 
rity of law, for the construction of public roads, canals, bridges, 
or the like. 

33. The right of eminent domain, or inherent sovereign power, 
gives to the Legislature of a State the control of private property 
for the use of the public, provided just compensation be made 
therefor. It is a general principle, which may, however, be denied, 
limited or modified in its application by the Constitution. 

34. In has been held by the courts of one of the States, that 
the provision in its Constitution, of the kind above stated, is merely 
declaratory of the common law ; the principle having existed before 
the Constitution, as applicable to all republican governments. 

35. Under the constitutional provisions, on this subject. Con- 
gress, or the Legislature of any State, cannot take the property of 
an individual, or divest him of a right of property, in order to give 
it to another. 

See the head, Administration of justice, further on, in this 
chapter. 



CH. in.] STATE BILLS OF RIGHTS. 225 

Security of conti-acts. 

36. It is generally declared in the several States : 

' ' That no law impairing the obligation of contracts shall be 
passed." 

The several States are prohibited by the federal Constitution to 
pass such laws. 

"No State shall" — "pass any law impairing the obligation of 
contracts." Cons, of U. S. Art. I. Sect. X. 1. 

The construction of these constitutional provisions has been con- 
sidered in a former part of this work, {d) 

Ex-post facto laws. 

37. The Constitution of every State provides, that the Legisla- 
ture thereof shall pass no ex-post facto laws. 

In some of the States, the provision is expressed thus ; ' ' That 
retrospective laws, punishing facts before the existence of such 
laws, and by them only declared criminal, are oppressive, unjust 
and incompatible with liberty ; wherefore, no ex-jiost facto law 
ought to be made. '' 

In some of the States it is declared, in their Bills of Rights, 
' ' that no retrospective laws shall be made, either for the decision 
of civil causes, or the punishment of offences." Coyis. of New 
Hampshire. 

See the head" Promulgation of laws," further on in this chai>- 
ter. The provision of the federal Constitution is ; " No ex-post 
facto law shall be passed.'' Cons, of U. S. Art. I. Sect. IX. 3. 

The meaning of these terms, and the construction of the clauses, 
have been the subject of notice, in the first part of this work, {d) 

Bills of attainder, attainder, {e) 

88. It is generally declared in these Bills of Rights as to bills 
of attainder : 

' ' That no person shall be attainted of treason or felony by th^ 
Legislature."' " That the Legislature shall pass no bills of at- 
tainder. ' ' 

' ' No person ought, in any case, or at any time, to be declared 
guilty of treason or felony by the Legislature." Massachusetts. 

In regard to attainder, in any way, for crime, it is provided in 
the several States, in general ; 

"That no conviction shall work corruption of blood or forfei- 
ture of estate, except during the life of the offender." 

" No conviction for any offence shall work corruption of blood 
or forfeiture of estate." Mississipjyi. 

(d) See Part I, chap. V. {d) See Part I. chap. IV. 

(e) See explanation of the terms and construction of the provisions. 
Part I. Chap. IV. p. 75. 



226 STATE BILLS OF RIGHTS. [PAKT U. 

' ' The estates of suicides shall descend or vest as in cases of 
natural death ; and if any person shall be killed by casualty, there 
shall be no forfeiture by reason thereof. " Alabama. 

See further on, in this chapter, the head "Administration of 
justice." 

Habeas corpus. 

39. What is the provision generally contained in the State 
Constitutions, in relation to the writ of Habeas corpus ? 

That the privilege of the writ of habeas corpus shall not be 
suspended, unless when in case of rebellion or invasion the public 
safety may require it. 

There is a similar provision in the federal Constitution. Cons, 
of U. S. Art. I. Sect. lY., 2. 

' ' That every freeman restrained of his liberty is entitled to a 
remedy to inquire into the lawfulness thereof, and to remove the 
same if unlawful ; and that such remedy ought not to be denied or 
delayed." North Carolina. 

The terms have been already explained, with some remarks on 
the subject. (/) 

Warrants, searches and seizures. 

•40. It is generally declared on this subject, in the State Con- 
stitutions, ' ' that the right of the people to be secure in their persons, 
houses, papers and eifects, against unreasonable searches and 
seizures, shall not be violated ; and no warrants shall issue but 
upon probable cause, supported by oath or affirmation, and par- 
ticularly describing the place to be searched, and the person or 
things to be seized." 

There is the same provision in the Constitution of the TJnited 
States. 

•' No person shall be deprived of life, liberty, or property, with- 
out due process of law." Cons, of U. S. Amendments, Art. Y. 

"No person shall be accused, arrested or detained, except in 
cases ascertained by law, and according to the forms which the 
same has prescribed ; and no person shall be punished but in virtue 
of a law established and promulgated prior to the offence, and 
legally applied. " Alabama and Missouri. 

See " Administration of justice," further on in this chapter. 

In some of the States it is, also, thus declared ; ' ' And that 
general warrants, whereby an officer may be commanded to search 
suspected places, T\dthout probable evidence of the fact committed, 
or to seize any person or persons, not named, whose offences are 
not particularly described, and without oath or affirmation, are 

CO See Parti. Chap. IV. 



CH. in.] STATE BILLS OF RIGHTS. 22T 

dangerous to liberty, and shall not be granted." Ohio, Illinois, 
Tennessee, North Carolina. 

Bailing of prisoners, 

41. These Bills of Rights provide, as to the right of accused 
persons to be discharged from arrest and custody, on bail ; 

' ' That all persons shall be bailable by sufficient sureties, except 
in capital cases, where the proof is evident, or the presumption 
great. ' ' 

The provision as to excessive bail is ; " That excessive bail shall 
not be required." 

There is a similar provision in the federal Constitution. Gons. 
of U. S. Amendments, Art. YIII. 

See the head Habeas Corpus, Part I, chap. VL 

Indictments. 

42. The State Constitutions generally provide; "That no 
person shall be held to answer for a capital or otherwise infamous 
crime, unless on a presentment or indictment of a grand jury, ex- 
cept in cases arising in the land or naval forces, or in the militia, 
when in actual service, or in time of war, or public danger." 

The federal Constitution contains a similar provision, applicable 
to cases in the Courts of the United States. Gons. of U. S. 
Amendments, Art. Y. 

In some of the States there is such a provision in relation to all 
criminal charges. 

"No freeman shall be put to answer any criminal charge, but 
by indictment, presentment or impeachment." North Carolina. 

In some of the States it is thus provided ; ' ' that no person shall, 
for any indictable offence, be proceeded against criminally by in- 
formation, except in cases arising in the land or naval forces, or 
in the militia, in the time of war or public danger ; or by leave of 
the court, for oppression or misdemeanor in office." 

An information is a mode of proceeding at common law ; and 
is an accusation filed by the prosecuting officer, upon which the ac- 
cused may be brought to trial without the introduction of a grand 

jury- 
In some of the States it is entirely abrogated, as mentioned 
above, and in the others it is scarcely ever used. 

Bight of the accused in criminal cases. 

43. It is generally contained in these Bills of Rights, as to the 
right of the accused in criminal cases, and their trial; "that in 
all criminal cases the accused hath a right to be heard by himself 
and counsel ; to demand the nature and cause of the accusation 
against him ; to meet the witnesses face to face ; to have compul- 



328 STATE BILLS OF RIGHTS, [PAPvT IT. 

sory process to obtain mtnesses in Ms favor ; to have a speedy 
public trial by an impartial jury of the county or district in whicli 
the offence shall have been committed."' 

In some of the States it is further added to such a proTision 
"that the accused cannot be compelled to give evidence against 
himself ; nor can be be deprived of his life, liberty, or property, 
unless by the judg-ment of his peers, or the laws of the land. " 

It is also generally thus provided, ' ' that no person shall for the 
same offence be twice put in jeopardy of life or limb." 

In the State of Iowa, the provision is ; " that no person shall 
be tried after an acquittal for the same crime or offence." 

The constitutional provision that no one shall be compelled to 
accuse or furnish evidence against himself, does not relate to ques- 
tions of property, but to criminal cases only. 

It is a principle in law, that after an acquittal by a jury on a 
criminal charge, a person cannot be again tried for the same offence ; 
but that, nevertheless, when such an acquittal has been caused by 
a defect in the indictment, or when the jury in the case has been 
discharged by the court on account of their being unable to agree 
on a verdict, he may be tried again ; on the ground that the first 
trial was no trial, and that he was not put in jeopardy by it. These 
principles hold, notwithstanding the above constitutional provisions. 

In the State of Missouri it is an express constitutional provision, 
"that no person, after having been once acquitted by a jury, can 
for the same offence be again put in jeopardy of life or limb ; but 
if in any criminal prosecution the jury be divided in opinion at the 
end of the term, the court before which the trial shall be had may. 
in its discretion, discharge the jury, and commit or bail the ac- 
cused for trial at the next term of such court. " 

See head "Administration of Justice," further on in this 
chapter. 

Confinement injaiJ. 

44. Some of the State Bills of Rights contain provisions as to 
the treatment of prisoners in jail. 

" 'So person arrested or confined in jail shall be treated with un- 
necessary rigor. ' ' Ohio, Tennessee, &c. 

" And when persons are confined on accusation for capital 
offences, their friends and counsel may at proper seasons have ac- 
cess to them." Delaware. 

Trial by jury. 

45. In these Declarations of Rights the right of trial by jury 
is secured. The provision is generally ; ' ' that in all criminal pro- 
secutions the accused hath a right to a speedy public trial by an 
impartial jury of the vicinage," 



CH. m. ] STATE BILLS OF EIGHTS- 229 

111 some States the provision is, ' ' that the trial by jury shall be as 
heretofore, and the right thereof remain inviolate;" in some States 
it being added, "but a trial by jury may be waived by the parties 
in all civil cases, in the manner to be prescribed by law. " 

By the vicinage is meant the vicinity, that is, the county or dis- 
trict, in which the alleged offence was committed- 

In some States it thus provided, ' ' that the usual number and 
unanimity of the jury, on indictments and convictions, shall be held 
indispensable." New Hampshire. 

" In all criminal prosecutions the accused hath a right to a speedy 
public trial by an impartial jury of the county, without the unani- 
mous consent of which jury he cannot be found guilty, ' ' Vermont. 

It -is generally thus provided, "that the accused cannot be de- 
prived of his life, liberty or property, except by the judgment of 
his peers, or the law of the land." 

"No freeman shall be imprisoned, disseized of his freehold, 
liberties, or privileges, or outlawed, exiled, or in any manner de- 
prived of his life, liberty or property, but by the judgment of his 
peers or the law of the land." Illinois, Tennessee, North Caro- 
lina. 

"No freeman shall be convicted of any crime, but by the unani- 
mous verdict of a jury of good and lawful men, in open court, as 
heretofore used," North. Carolina. 

" The ancient mode of trial by jury shall be held sacred, and 
the right thereof remain inviolate." Virginia, Kentucky, 

' ' That when an issue in fact, proper for the cognizance of a jury 
is presented in a court of law, the parties have a right to a trial 
by jury, which ought to be held sacred." Vermont. 

In some of the States the provisions in their Bills of Rights are 
as follows, or similar thereto ; ' ' That in all civil cases, where the 
value in controversy shall exceed the sum of twenty dollars, and in 
all criminal cases, except in petty misdemeanors, which shall be 
punishable by tine not exceeding three dollars, in such manner as 
shall be prescribed by law, the right of trial by jury shall remain 
inviolate. ' ' Indiana. 

The provisions of the federal Constitution as to the right of trial 
by jury are the following ; 

' ' In all criminal prosecutions the accused shall enjoy the right to 
a speedy public trial by an impartial jury of the State or district 
where the crime shall have been committed. ' ' Cons, of U. S. 
Amendments, Art. VI. 

* ' In suits at common law, where the value in controversy exceeds 
twenty dollars, the right of trial by jury shall be preserved. " Cons, 
of U. S. Amendments, Art. VII. This provision applies only to 
the United States courts. 

See head " Adrajijistration of justice, " Jfurther on in this chapter. 

20 



2:30 STATE BILLS OF EIGHTS. [PART n. 

No commission of Oyer and Terminer. 

46. It is generally provided in these Declarations of Rights ; 
' ' No commission of Oyer and Terminer or jail delivery shall be 
issued. ' ' 

Such were special commissions issued to persons other than the 
ordinary judges of the courts, on particular occasions, to hear, try 
and determine, and punish certain oifences, or particular offences 
alleged to have been committed ; as had been practised in Eng- 
land. Courts of Oyer and Terminer are so called, because they 
are authorized to hea?^ and determine criminal cases. 

Fines and punishments. 

4Y. The State Bills of Rights generally provide, on this sub- 
ject ; ' ' That excessive fines shall not be imposed, nor cruel or un- 
usual punishments infflcted. ' ' 

The same provision is contained in the federal constitution. Cons, 
of U. S. Amendments^ Art. YIII. 

In some of the Bills of Rights of the States it is declared ' ' All 
penalties shall be apportioned to the nature of the offence. No 
wise Legislature will afl&x the same punishment to the crimes of 
theft, forgery, and the like, which they do to those of murder and 
treason. When the same undistinguishing severity is exerted 
against all offences, the people are led to forget the real distinction 
in the crimes themselves and to commit the most flagrant with as little 
compunction as they do the slightest offences. For the same reason 
a multitude of sanguinary laws is both impolitic and unjust ; the 
design of all punishments being to reform, not to exterminate 
mankind. " 

In some of the State Constitutions it is provided ; ' ' that no person 
shall be transported out of the State for any offence committed 
within the same." Illinois. 

' ' Nor shall any free white citizen be exiled imder any pretence 
whatever." Cons, of Mississippi, 

Counsel and hearing at laxo. 

48. ' ' No person shall be debarred from advocating or defend- 
ing his cause, before any court or tribunal, by himself or cotmsel, 
or both. " Georgia. 

' ' And in any trial, in any court whatever, the party accused shall 
be allowed to appear and defend in person or -R^th counsel, as in 
civil actions." California. 

Bights of suffrage. Elections. 

49. It is generally provided, in the State Bills of Rights, that 
all elections shall be free and equal, (j) 

Cyj See, as to qualification of electors, or the right to vote, foi'tlier on, 
Pajt 11. chap» YIL and see chap. IV. Part II. 



CH. in.] STATE BILLS OF RIGHTS. 231 

" All elections ought to be free, and every inhabitant of the 
State, having the proper qualifications, has an equal right to elect 
and be elected to office." New Hampshire. 

— " All men having sufficient evidence of common interest with, 
and attachment to the community, have the right of suffrage." 
Virginia. 

"All freemen, having a sufficient evidence of common interest 
in, and attachment to the community, have a right to elect officers, 
and be elected to office." Vermont. 

In some of the States it is thus provided ; ' ' that no property 
qualification for elegibility to office, or for the right of suffrage, 
shall ever be required by law in the State. ' ' Mississippi. 

Mode of voting, at elections. 

50. In some of the States it thus provided, that all elections 
by the people, or the Legislature, shall be by ballot. Lousiana. 

In others, it is provided that at all elections the votes shall be 
given openly, or viva voce, and not by ballot. Virginia. 

' ' All votes shall be given viva voce, until altered by the Legis- 
lature. " Illinois. 

All elections shall be by ballot, except those by persons in their 
representative capacities, who shall vote viva voce. Pennsylvania. 

In most of the States the mode of voting at elections by the 
people is by ballot. 

In many of the States the manner of voting is not prescribed by 
their Constitutions, but is fixed by law. 

5L Voting by ballot is voting in such a manner that it is not 
known for whom the particular elector votes. Generally, it is 
voting with written or printed tickets, folded in such a manner as 
to conceal the name of the person voted for, until all the votes 
given at the election after being promiscuously put together are 
separately read, the names of the voters of particular tickets not 
being known. 

A statement of the constitutional provisions in relation to the 
right of suffrage, or the qualifications of electors, in the several 
States, is contained in chapter YII, Part II, of this work. 

Tenure and term of office. 

52. In regard to the tenure and term of office, it is generally 
provided, ' ' that all offices shall be held only on the condition of 
good behaviour." This is called the tenure of office. 

In some of the States it is thus provided ; ' ' No person shall 
ever be appointed or elected to office in the State for life, or during 
good behaviour ; but the tenure of all offices shall be for some 
limited period of time, if the person appointed or elected thereto 
shall so long behave himself well." Mississippi. 



232 STATE BILLS OF RIGHTS. [PAKT H. 

Offices to be held during good behaviour indefinitely, are for 
life. Generally State officers are for limited terms of years. In 
some States judges, and other judicial officers, hold their offices for 
life, on condition of good behaviour. See, further on, chapter 
YII, Part II. 

In some States it is expressly declared in their Bills of Kights ; 
' ' No office or place whatsoever, in government, shall be hereditary ; 
the ability and integrity requisite in all not being transmissible to 
posterity or relations. ' ' Neiv Hampshire. 

Eligibility to offi.ce. 

53. See, above, the head "Elections and rights of suflFrage. " 
In some of these Declarations of Rights it is provided ; "that 

no person ought to hold, at the same time, more than one office of 
profit. ' ' Maryland. Indiana. 
See, also, chapter VII, Part II. 

Perpetuities and monopolies. 

54. In some of the State Constitutions it is provided; "that 
perpetuities and monopolies are contrary to the genius of a free 
State, and ought not to be allowed." North Carolina. Ten- 
nessee. 

"That monopolies are odious, contrary to the spirit of a free 
government, and the principles of commerce, and ought not to be 
suffered. ' ' Maryland. 

Corporations. 

55. In the Declaration of Rights of Ohio it is provided ; "That 
every association of persons, when regularly formed within this 
State, and having given themselves a name, may, on application 
to the Legislature, be entitled to receive letters of incorporation, 
to enable them to hold estates, real and personal, for the support 
of schools, academies, colleges, universities, and other purposes." 

Banks. 

56. In the Declaration of Rights of Illinois it is provided ; 
" That there shall be no other banks or moneyed institutions in this 
State but those already provided by law except a State bank and 
its branches, which may be established and regulated by the Gen- 
eral Assembly of the State, as they may think proper." 

There are provisions in the Constitutions of Indiana, Alabama, 
prohibiting the establishment of any banking company, for the 
purpose of issuing bills of credit, or bills payable to order or 
iDcarer ; except a State Bank, with branches, under particular 
conditions. 

See chapt. Ill, Part II, as to special constitutional provisions 



OH. m.] STATE BILLS OF RIGHTS. 233 

in some of the States, in relation to the incorporation of banks or 
banldng companies. 

Taxes. 

57. There are contained in these Declarations of Rights certain 
principles as to the levying of taxes on the people. It is declared, 
generally, that the people of the State ought not to be taxed, or 
made subject to the payment of any impost or duty, without the 
consent of their representatives in the Legislature freely given. 

In some of the States it is thus declared : ' ' that the levying of 
taxes by the poll is grievous and oppressive ; therefore the Legis- 
lature shall never levy a poll tax for county or State purposes." 
Ohio. 

Bight to bear arms. 

58. The provision on this subject is, generally, "that the peo- 
ple have a right to bear arms for the defence of themselves and 
the State." 

And, "every citizen has a right to bear arms in defence of him- 
self and the State." 

In Tennessee the provision is ; " Free white naen have a right 
to bear arms," &c. 

Militia. 

59. There are various provisions as to the militia of a State. 
In some of these Bills of Rights it is declai-ed ; "that a well 

regulated militia is the proper, natural and sure defence of a 
State." 

In some of the States it is declared in their Bills of Rights, that 
every member of the community, as he is protected by it, is bound 
to contribute his share to the expense of the mutual protection, 
and to yield his personal service when necessary or an equivalent. 
Massachusetts, New Hampshire. 

It is generally thus declared; "that no person who is consci- 
entiously scrupulous of bearing arms can be compelled to do so, 
provided he pay an equivalent for such service, "(r) Missouri, 
Pennsylvania. 

In the State of Tennessee it is thus provided ; ' ' that no citizen 
of the State shall be compelled to bear arms, provided he shall pay 
an equivalent to be ascertained by law. " 

In some States the constitutional provision is; "No person or 
persons conscientiously scrupulous of bearing arms, shall be com- 
pelled to do militia duty in time of peace, provided such person 
or persons shall pay an equivalent for such exemption. " Illinois. 

In some States it is, also, thus provided; "that no priest, 
preacher of the Gospel, or teacher of any religious denomination 

(r) See above in this chapter, the head " Religious liberty," &c. 
20* 



234 STATE BILLS OF EIGHTS. [PART n. 

or sect, regularly ordained as such, shall be subject to militia duty, 
or compelled to bear arms. " Missouri. 

Standing armies. 

60. It is generally declared in these Bills of Rights in relation to 
standing armies ; " That standing armies are dangerous to liberty, 
and ought not to be raised or kept up, without the consent of the 
Legislature. " 

' ' ISTo standing army shall, in time of peace, be kept up, without 
the consent of the Legislature.'' 

By the federal Constitution there is a prohibition on the several 
States. ' ' No State shall, without the consent of Congress, keep 
troops or ships of war, in time of peace." Cons, of U. S., Art. 
I , Sect. X. 2. 

Quartering of soldiers. 

61. The provision on this subject is, generally, "that no sol- 
dier shall, in time of peace, be quartered in any house, without the 
consent of the owner, nor in time of war but in a manner to be 
prescribed by law. " 

Martial law. 

62. In some of the States it is declared ; "that no person can 
in any case be subjected to martial law, or to any pains and penal- 
ties by virtue of that law, (except those employed in the army or 
navy, and except the militia in actual service, ) but by authority of 
the Legislature." Massachusetts, New Hampshire. 

Subordination of the military power. 

63. In general, it is provided, that ' ' in all cases, and at all times, 
the military shall be in strict subordination, and be governed by the 
civil power. ' ' 

Imprisonment for debt. 

64. In most of the States it is provided, "that the person of a 
debtor, where there is not strong presumption of fraud, shall not 
be continued in prison, after delivering up his estate for the use of 
his creditors, in such manner as shall be prescribed by law. ' ' 

" The person of a debtor cannot be imprisoned for debt after he 
shall have delivered up his property for the benefit of his creditors, 
in such manner as shall be prescribed by law.'' 

" No person shall be imprisoned for debt. " Cons, of Texas. 

' ' No person shall be imprisoned for debt in any civil action on 
mesne or final process, unless in cases of fraud ; and no person shall 
be imprisoned for a militia fine in time of peace. " California. {!) 

(J) See Part II. chap. IV , head " Religious Liberty," &c. 



OH. tn.] STATE BILLS OP RIGHTS. 235 

Education. 

65. In some of the States it is declared, " that education ought 
to be encouraged by legislative provision." 

" Religion, morality and knowledge being essentially necessary 
to the government and happiness of mankind, schools and the 
means of instruction shall forever be encouraged by legislative pro- 
vision, not inconsistent with the rights of conscience." Ohio. 

In some of the State Constitutions it is provided, "that the arts 
and sciences shall be promoted, and ' ' that the Legislature shall 
provide by law for the establishment of schools throughout the 
State." {m) 

"In some States it is constitutionally provided ; " The Legisla- 
lature shall, as soon as conveniently may be, provide by law for 
the establishment of schools throughout the State, in such manner 
that the poor may be taught gratis." 

Promulgation of the laws. 

66. In some of the State Bills of Rights there are particular 
provisions on this subject. 

' ' No person shall be punished but in virtue of a law established 
and promulgated prior to the offence, and legally applied. " Mis- 
souri, Alabama. 

' ' No Act of the General Assembly shall be in force until it shall 
have been published in print." Indiana. 

"Within five years after the adoption of the Constitution, the 
body of our laws, civil and criminal, shall be revised, digested and 
arranged, under proper heads, and promulgated in such a manner 
as the General Assembly may direct ; and a like revision, digest 
and promulgation shall be made within every subsequent period of 
ten years." Alabama. 

Suspension of laws. 

61. It is generally declared, "that no power of suspending 
laws shall be exercised, unless by the Legislature." 

The State Constitutions in general, declare that no power of sus- 
pending laws shall be exercised, unless by the Legislature, or its 
authority. 

Monarchs in Europe had suspended the operation of the laws of 
their realms ; and there had been cases in which the Governors of 
the Provinces in this country, by the command of the King of 
Great Britain, had assumed the like authority. It was designed 
by these provisions, to establish fundamentally and permanently the 
correct principle of free government on this subject. 

Suits against the State. 

68. It is thus provided in some of the States on this subject 

Cm; See Part II. chap. lY. 



236 STATE BILLS OF BIGHTS. [PABT H. 

' ' Suits may be brouglit against tlie State in suoli a mauuer, and in 
such com-ts, as the Legislature may by law direct." Tennessee. 
Delaware. 

" The Legislature shall by law direct in what manner, and in 
what courts, suits maybe brought against the State. " Missis- 
sippi. 

Slavery and servitude. 

69. Some of the Declarations of Rights contain provisions ex- 
pressly and specially prohibiting slavery. 

' ' There shall be neither slavery nor involuntary servitude in the 
State, otherwise than for the punishment of crimes, whereof the 
party shall be duly convicted. " Ohio, Indiana, Wisconsin, Iowa, 
Illinois, California. 

" iSTo male person, born in this country, or brought fi'om over 
sea, ought to be holden by law to serve any person as a servant, 
slave, or apprentice, after he arrives to the age of twenty-one years, 
nor female, in like manner, after she arrives at the age of eighteen 
years, unless they are bound by their consent, after they arrive at 
such age, or bound by law for the payment of debts, damages, 
fines, costs, or the like.'' Vermont. 

In some of the States there are express special provisions con- 
cerning slavery and slaves, in their Constitutions, though not in 
those parts thereof denominated Declarations of Eights, which pro- 
visions are given, or noticed, in chapter lY , Part II. See in that 
chapter as to Georgia, Kentucky, Illinois, Mississippi, Alabama, 
Wisconsin, Iowa. 

to. In some of the States there are such provisions as the fol- 
lowing, viz. ; ' ' Xor shall any male person, arrived at the age of 
twenty-one years, nor female person arrived at the age of eighteen 
years, be held to serve any person as a servant, under pretence of 
indenture or otherwise, unless said person shall enter into such in- 
denture while in a state of perfect freedom, and on condition of 
bona fide consideration, received or to be received for their service, 
except as l^efore stated, (that is, in the ease of punishment of 
crimes. ) j!>for shall any indenture of any negro or mulatto, made 
and executed out of the State, or made within the State when the 
term of service exceeds a year, be of the least validity, except 
those given in the case of apprenticeship." Oliio. 

See, also, as to constitutional provisions on this subject, in 
chapter, lY. Part 11. 

Administration of justice. 

71. What do the State Bills of Rights provide as to the ob- 
taining a remedy by law for wrongs or injuries ? 



CH. HI. j STATE BILLS OF RIGHTS, 2St 

Generally, that all courts shall be open ; and every person, for 
an injury done hira in his land, goods, person, or reputation, shallS 
have remedy by due course of law, and right and justice done him 
without denial or delay:" Or, as it is expressed, in some of the 
States, " and every pereon shall obtain right and justice freely, with- 
out being obliged to purchase it ; completely, without denial } 
promptly, without delay ; conformably to the laws. " 

' ' No person shall be debarred from prosecuting or defending 
any civil cause, for or against himself, before any tribunal in the 
State, by himself or counsel." Alabama. 

See, also, above in this chapter, the heads ' ' Searches and seiz- 
ures," "Rights of accused persons," and "trial by jury." 

Right of emigration. 

T2. There is, in general, a constitutional provision; "That 
emigration from the State shall not be prohibited. ' ' 

Latv of primogeniture. 

IB. "The law of primogeniture, " — "shall never be in force 
in this State. " Texas. 

Entailments. 

74. "Nor shall the law," — " of entailments ever exist in this 
State." Texas. 

Witnesses. 

75. " Nor shall witnesses be unreasonably detained. " Cons, 
of California. 

Uniformity of laws. 

76. " All laws of a general nature shall have a uniform opera- 
tion. ' ' California. 

Bights of foreigners. 

77. "Foreigners who are or may hereafter become bona fide 
residents of this State, shall enjoy the same rights in respect to 
the possession, enjoyment and inheritance of property, as native 
born citizens. " California, Wisconsin, Iwjoa. 

Title to land, and tenure. 

78. "All lands within the State are declared to be allodial, 
and feudal tenures are prohibited. Leases aud grants of agri- 
cultural land for a longer term than fifteen years, in which rent or 
service of any kind shall be reserved, and all fines and like re- 
straints upon alienation, reserved in any grant of land, hereafter 
made, are declared to be void." Cons, of Wisconsin. 



238 STATE BILLS OF RIGHTS. [PAST H. 

Reserved rights of the people. 

V9. In some of the States, it is declared ; 
"The enumeration of certain rights, in the Constitution, shall 
ffiot impair or deny others retained by the people." 



I 



CHAPTER IV. 



LEGISLATURES OF THE STATES. 



1. In all the States, by their Constitutions respectively, the 
legislative authority is made a particular and specific one, to be 
exercised distinctly from the other powers of government. It is 
so provided in accordance with the system of republican govern- 
ments by which their powers are distributed among different de- 
partments, (d) 

This authority is termed, in the Constitutions, ' ' the legislative 
power of the State," or, "the supreme legislative power of the 
State ; ' ' being assigned, as such, to a body of persons, elected 
periodically by the people. 

2. The legislative power of each State is vested, by its Constitu- 
tion, in a legislature, or "General Assembly, " consistiing in gen- 
eral of two branches, a Senate and House of Representatives or Del- 
egates ; elected by the people of the State. 

In Massachusetts and New Hampshire the Legislature, consist- 
ing of two branches, is called the "General Court" of the par- 
ticular State. In North Carolina the most numerous branch of 
the Legislature is styled "the House of Commons." In Massa- 
chusetts the Senators are Counsellors. In New Jersey the gov- 
ernment is vested in a Governor, Legislative Council and General 
Assembly. In Vermont the Legislature consists of one branch, 
called the General Assembly. In Texas the legislative power is 
vested in two branches, which together are termed the Legislature 
of Texas. 

The nature, in general, of the legislative department of a gov- 
ernment, and the expediency of its being made to consist of two 
branches, have been the subject of previous remarks. (&) 

3. The two branches of a State Legislature act separately and 
independently in their deliberations and proceedings, for the mak- 
ing of laws ; though the assent of both branches is necessary to 
the final passing of a law. (c) 

With respect to legislative duties, the powers of each branch are, 
in general, the same. They differ, however, in regard to some im- 

(a) See, above, Part II, cliapt. I. (b) See Part I, cliapt. Ill, p. 36. 

(c) See, further on in this chapter, the head " Mode of passing laws." 

239 



240 STATE LEGISLATURES. [PART H. 

portant matters, as will be seeu under the various subsequent heads 
of this chapter. 

4. The authority of a State Legislature includes, in general, 
the power of originating and proposing laws, altering and amend- 
ing projects thereof, and deliberating and deciding thereon, at its 
discretion. The manner in which the action is had, in the enact- 
ment of laws, is shown under the proper head in this chapter. 

5. In general, the acts done, or laws passed by tne Legislature, 
may be revoked or repealed, altered or amended, by it at another 
session thereof, or at any other time. They are not binding, in 
reference to its subsequent action thereon. Contracts made, or 
rights vested, however, whether under the State or between indi- 
viduals, by former laws, cannot constitutionally be thus impaired, 
destroyed or changed. (^) 

Jfumher of members thereof. 

6. The number of members in the Legislatures of the States 
respectively is generally limited by the Constitutions of the States 
respectively ; in many of the States it is not less than sixty nor 
more than one hundred in the House of Representatives or most 
numerous branch, and in the Senate not less than one-fourth nor 
more than one-third of the number of Representatives. In some 
of the States the number is greater, and in others less. 

Apportionment of members. 

7. The members of the Legislatures of the several States are 
apportioned among the counties and districts thereof, according to 
the number of taxables in each county or district, or, in some 
States, of the white male adults ; for which purpose an enumera- 
tion thereof is made at certain periods. 

Qualifcations. 

8. The qualifications, generally required, to be a member of a 
State Legislature, are, that a person be a citizen of the State, a 
resident therein, that he be an adult of a certain age, and have 
resided for a certain time in the district or county for which he 
may be elected. A greater age and longer residence are generally 
required as qualifications of a Senator than of a Representative. 

9. In some of the State Constitutions it is provided, that 
ministers of the gospel, priests o;* clergymen of any religious 
denomination, shall not be eligible to the Legislatures. See Part 
II. chap. Ill, head "Religious liberty." 

10. It is also declared by some of the State Constitutions that 
persons guilty of particular offences, as bribery at elections, im- 
properly influencing voters, and the like, shall not be elected to 
the Legislatures. See, further on, chap. YII. 

(d) See Part I. chap. V. 



OH. IV.] STATE LEOISLATURES, 241 

11. In some of the States, by their Constitutions, duelists, or 
persons who have been concerned in sending or accepting a chal- 
lenge to fight a duel, are declared to be incapable of holding any 
office of trust or profit ; or of being a member of the Legislature. 

12. "No person who hereafter may be a collector, or holder 
of public money, shall have a seat in either House of the General 
Assembly, until such person shall have accounted for and paid 
into the treasury all sums for which he may be accountable. ' ' Cons, 
of Indiana, Alabama, Louisiana, Ohio, Tennessee, Kentucky. 

Incompatibility of offices. 

13. What is generally provided in a State Constitution as to 
officers of the United States being ineligible to its Legislature ? 

That no member of Congress or officer under the United States 
shall be a member of the State Legislature. 

14. What is generally so provided as to State officers ? 

That a person holding an office (except of attorney at law, or in 
the militia) under the State, shall not be a member of the Legis- 
lature. 

15. In some of the States other particular officers are made 
ineligible to the Legislature. 

In some of the State Constitutions it is provided, that "no 
judge of any court of law or equity, secretary of State, attorney 
general, clerk of any court of record, sheriff or collector, or any 
person holding a lucrative office under the United States, or the 
State, or any foreign government, shall be eligible to the Legisla- 
ture, "(e) 

Election of members thereof. 

17. As to the qualifications of electors of members of the State 
liCgislatures : In general, at all elections by the people, every 
white freeman, being a citizen of the United States, of the age of 
twenty-one years, who has resided in the State for one year pre- 
ceding, unless absent on public business, who is an actual resident 
of the township or district where the election is held, and who has 
paid a State or county tax, is entitled to vote. . In some of the 
States, it is required that a person shall be a freeholder, or own a 
certain amount of property, in order to his enjoying the rights of 
an elector. In other States, the right of suffrage is universal ; 
neither the payment of taxes, nbr the owning of property, being- 
requisite to the exercise of it. 

The qualifications necessary in electors of the most numerous 
branch of the State Legislature are requisite in electors of United 
States officers. See Part II. chap. VII, head '^Elections." 

(e) See this head in Part II. chap, VIL 
21 



242 STATE LEGISLATURES. [PART II, 

In some States, the qualifications of voters for the Senate are 
different from those of voters for members of the other branch of 
the Legislature. 

Oath of office. 

18. "The members of the State Legislatures," — "shall be 
bound by oath or affirmation to support this Constitution." Coni<. 
of U. S. 

19. It is generally provided, by the Constitution of a State, 
that the members of its Legislature shall be bound by oath or 
affirmation to support the Constitution of the State, and to perform 
the duties of their respective offices with fidelity. 

20. "Each member of the Senate and House of Representatives 
shall, before they proceed to business, take an oath or affirmation, 
to support the Constitution of the United States, and of this State, 
and also the following oath: " I do solemnly swear (or affirm) 
that, as a member of this General Assembly, I will, in all appoint- 
ments, vote without favor, affection, partiality or prejudice ; and 
that I will not propose or assent to any bill, vote or resolution, 
which shall appear to me injurious to the people, or consent to any 
act or thing whatever, that has a tendency to lessen or abridge 
their rights and privileges, as declared by the Constitution of this 
State." Cons, of Tennessee. 

See head " Oaths of office," further on, chapter YII. 

Term of service. 

21. The term of service of the members of the State Legisla- 
tures is various. Grenerally, the Representatives, or members of 
'the most numerous branch, are elected for one year ; and the 
terms of service of the Senators vary in the different States, being 
in some for three years, and so arranged that one-third of the 
number is elected every year, and in other States for a shorter or 
longer period. 

In some States the Representatives are elected for two years. 
Members of the Legislatures may, in general, be re-elected, after 
the expiration of a particular term of service, indefinitely. 

Time of meeting. 

22. The State Legislatures are required to meet, in general, 
at least once a year, as directed by their Constitutions respectively. 

In some States, the regular time of their meeting is only once 
in two years ; as in Texas. 

Generally, in each State the Governor is authorized, by the 
Constitution thereof, to convene the Legislature at other times, 
on extraordinary occasions. 



CH. IV.] STATE LEGISLATURES. 243 

The Governor ' ' may, on extraordinary occasions, convene the 
General Assembly by proclamation ; and shall state to them, when 
assembled, the purpose for which they shall have been convened ; 
but they shall enter on no legislative business, except that for 
which they were especially called together. " Cons, of Kentucky, 
of 1834. 

23. The members of the Legislature may be compelled to 
attend their meetings. It is generally provided, in a State Con- 
stitution, that each branch of the Legislature may compel its 
members to attend its sessions. 

Adjournment 

24. The State Legislatures may adjourn by the joint order or 
resolution of both houses thereof, at any time. They may thus 
adjourn to any time which is before the next election for members 
thereof 

As to the power of either House of a State Legislature to 
adjourn, generally, it is constitutionally provided that neither House 
can adjourn for more than three days ; nor to any other place, than 
that in which the two Houses are sitting. 

In some of the States, the Governor of the State is authorized, 
by the Constitution thereof, in case of disagreement between the 
two Houses of the Legislature as to the time of their adjournment, 
to adjourn the same to such time as he shall see proper, not exceed- 
ing a limited period, or, not beyond the time of the next annual 
meeting of the Legislature. Such adjournment cannot be to a time 
beyond the next election of members of the Legislature. As to 
this power of the Governor, the reader is referred to the next chap- 
ter. It thus appears, that in general, the duration of the session 
of a State Legislature, and the frequency of its sessions beyond the 
regular period are determined by itself at its discretion. In some 
States this power is limited by their Constitutions. 

Privilege of members from arrest. 

25. Members of the State Legislatures have certain privileges 
in regard to arrests and suits at law. 

By the State Constitutions, it is generally provided, that they 
shall be privileged from arrest during their attendance at the ses- 
•sions of their respective Houses, and in going to and returning 
from the same, in all cases except treason, felony, and breach or 
surety of the peace. 

It has been adjudged in some of the States, that members of the 
Legislatures are privileged, at common law, from arrests, summons, 
citation or other civil process, during their attendance on the pub- 
lic business confided to them, 4 Dallas^ Iieports.,p. 101. 



244 STATE LEGISLATURES. [PART H. 

" Members of the Legislature — shall not be subject to any civil 
process, during the session of the Legislature, nor for fifteen days 
next before and after the termination of each session. ' ' California, 
Wisconsin. 

Freedom of speech or debate, 

26. With regard to the privilege of members of the State 
Legislatures as to speech or debate therein, there is generally a 
constitutional provision of the State that they shall not be ques- 
tioned for any speech or debate in the Legislature, (e) 

Compensation of members. 

2T. In most of the States it is constitutionally provided that 
the members of the Legislatures shall receive a compensation for 
their services, to be ascertained by law, and paid by the State ; in 
some instances the amount, or the maximum thereof, being fixed by 
the Constitution. 

In some of the States it is also so provided, that no increase of 
such compensation shall take effect during the year in which it shall 
be made ; or, that no alteration thereof shall be made by any 
Legislature, to take effect during the existence of the Legislature 
which shall make such alteration ; or, that the compensation may 
be increased or diminished by law, but no alteration shall take 
effect during the session at which such alteration shall be made. 

The compensation is generally a certain sum for every day during 
their attendance on the session or sessions of the Legislature, and 
in going to and returning from the same ; or for such attendance 
and a certain rate for travelling expenses. 

SEPARATE POWERS AND DUTIES OF EACH HOUSE. 

28. It is generally provided in a State Constitution, that each 
House shall have all the powers necessary for a branch of the 
Legislature of a free State. 

As to the election and qualification of members. 

29. In general, it is expressly provided in the State Constitu- 
tion, that each House of the Legislature is to judge of the quali- 
fications of its own members. 

Contested elections of members are, also, to be determined by the 
Legislature of the State, in such manner as is directed by law. 

It is meant by these provisions, that each House should have the 
power of judging and determining whether the persons had the 
qualifications required, or whether their election was had accord- 
ing to the Constitution and laws of the State. 

CeJ See Part I. chap. III. 



I 



CH. IV.] STATE LEGISLATURES. 345 

Quorum. 

30. A majority of each House of a State Legislature consti- 
tutes a quorum to do business. And there is generally provision 
by law for compelling the attendance of absent members. A 
smaller number than the majority in each House may adjourn from 
day to day. 

In some States two-thirds of each House of the Legislature is 
necessary to constitute a quorum to do business ; as in Tennessee. 

Either House is organized by the attendance of a quorum of its 
members, and the election of its officers, when all questions before 
it are, in general, according to its rules of proceeding, determined 
by a majority of the members present. In some cases, the assent 
of a greater number is made, by the Constitution, necessary to a 
decision or to the passing of a bill, order or resolution, (f) 

Each House is thus organized at the first meeting of its members 
after their election, being then a new House ; to be continued, 
during all its sessions, during the time of service of the members ; 
though its officers may be changed at its pleasure. 

Officers. 

3L The usual officers of each House are a President or Speaker, 
as presiding officer, a Secretary or Clerk, a Sergeant-at-arms, and 
a door-keeper, with deputies and assistants of these last mentioned 
officers. In general, each House chooses its own officers. 

In States where there is a Lieutenant-Grovernor, he is, generally, 
by virtue of his office. President of the Senate, having a right to 
debate in committee of the whole, and when the Senate is equally 
iivided to give the casting vote. 

Rules of proceeding. 

32. It is, in general, constitutionally provided, that each House 
shall determine the rules of its proceeding. It is implied that these 
rules shall be consistent with the federal Constitution and that of 
the particular State, and with the laws of the State. 

Power to punish its members 

33. Each House may punish its members for disorderly beha- 
viour. It is generally so provided by the State Constitution. 

Expulsion of members. 

34. What power has each branch of a State Legislature to 
expel any of its members ? 

It is generally provided in the Constitution of a State that each 
House of its Legislature may, with the concurrence of two-thirds, 

(/) See Part I. chap. ITT. 80, and this ehap. 
21* 



24$ STATE LEGISLATURES. [PART H. 

expel a member. In some States a member cannot be thus ex- 
pelled a second time for the same, cause as in Yirginia. Mem- 
bers of a Legislature cannot be removed by impeachment. They 
may be punished by indictment before the courts of justice for bri- 
bery, corruption or other misdemeanor, (g) 

In "Vermont, it is provided by its Constitution, that the Legisla- 
ture ' ' may expel members, but not for causes known to their own 
constituents antecedent to their election." 

Contempt. 

35. Each House of a State Legislature has the power, gen- 
erally given expressly by the Constitution of the State, to punish 
its own members for misbehaviour or contempt : and it has the im- 
plied power, arising from the nature of its duties, and necessary 
for their performance, to commit and imprison other persons for 
contempt, (h) 

In some of the States it is expressly provided by their Constitu- 
tions, respectively, that " either House of the Legislature shall 
have authority to punish by imprisonment any person not a member 
thereof, for contempt or disorder." 

It is generally considered that the imprisonment cannot be for a 
longer time than during the session of the Legislature. 

To sit with open doors. 

36. It is generally provided in the Constitution of a State, that 
each House of the Legislature shall sit with open doors imless the 
business shall be such as ought to be kept secret. 

Journal. 

37. It is generally required by the Constitution of a State, that 
each House of its Legislature shall keep a journal of its proceed- 
ings, and publish it from time to time, except such part^as may 
require secresy. 

Yeas and nays. 

38. It is generally provided in the Constitution of every State 
that the yeas and nays of the members of each House of its Legis- 
lature shall be taken, on any question, at the request of a certain 
number of the members, and entered on its journal. In some 
States it is done at the request of two members ; in others, of a 
greater number. At the calling of the yeas and nays, every mem- 
ber may be compelled to vote, unless excused. 

' ' The ayes and noes shall be taken in each House upon the 
final passage of every bill, of a general character, and bills making 
appropriations of public monies." Cons, of Tennessee. 

(g) See Part I. chap. Ill , head " Impeachment." 
(h) See Part I. chap. III., par. 93. 



CH. rV. ] STATE LEGISLATURES. 24T 

On a reconsideration of a bill which has been disapproved by 
the Governor or executive power, the yeas and nays are in general 
required to be taken and entered on the journal. 

In some of the States it is made imperative, by the Constitution, 
that the yeas and nays shall be taken in each House of the Legis- 
lature on particular questions. 

Originating of laivs. 

39. In general, all laws may be originated in either branch 
of the Legislature of a State. 

In Virginia, it is provided by its Constitution : "All laws shall 
originate in the House of Delegates, to be approved or rejected 
by the Senate, or to be amended with the consent of the House 
of Delegates. " ^ 

In some of the States it is constitutionally provided, that all 
bills for raising revenue shall originate in the House of Repre- 
sentatives of the State, the Senate having the power of amendment. 

In general, also, each House has the power of proposing 
amendments to all bills or drafts of laws passed by the other 
House. 

"Bills may originate in either House, but may be altered, 
amended or rejected by the other." Cons, of Ohio, Tennessee, 
Indiana. 

In the language of some of the State Constitutions, each House 
"shall have a negative on the other." 

Prohibitions on the members. 

40. "No member of the Council or House of Representatives 
shall, directly or indirectly, receive any fee or reward to bring 
forward or advocate any bill, petition, or other business, to be 
transacted in the Legislature ; or advocate any cause, as counsel, 
in either house of legislation, except when employed in behalf of 
the State." Cons, of Vermont. 

Adjournment. 

40. The Constitution of a State generally provides, in relation 
to the Legislature, that "neither House shall, without the consent 
of the other, adjourn for more than three days, nor to any other 
place than that in which the two Houses shall be sitting. ' ' 

A smaller number than a majority of each House may adjourn 
from day to day, 

Vacancies. 

41. Vacancies in the State Legislatures are supplied by the 
people at new elections. 

The Governor by his proclamation, or the Speaker of the proper 



248 STATE LEGISLATURES. [PART H. 

House, by tis warrant, orders a special election in the vacant 
district. 

The terra of service of Senators and Represeutatives in the 
State Legislatures is an integral term, so that when a vacancy 
occurs by death, resignation or otherwise, the person elected to 
fill it only serves out the unexpired time. 

Right of protest. 

42. ' ' Any member of either House of the General Assembly 
shall have liberty to dissent from, and protest against, any act or 
resolve which he may think injurious to the public or to any indi- 
vidual, and to have the reasons for his dissent enter-ed on the 
journal. " Cons, of Tennessee, Indiana and North Carolina. 

In ^io and Illinois the constitutional provision is, that any two 
members of either House shall have such a right. 

GENERAL DUTIES AND POWERS OP THE STATE LEGISLATURES. 

43. The duties and powers of the Legislature of a State are 
declared by its Constitution. All legislative authority is only by 
virtue of the Constitution ; being vested, for the most part, in 
general terms, with special grants and limitations in particular 
instances. Certain duties are prescribed by the federal Constitu- 
tion to the State Legislatures respectively, as in respect to the 
election of Senators and Representatives in Congress. 

The State Legislatures are vested with only limited powers ; there 
being restrictions as to the exercise of power by them, in the federal 
Constitution, and in those of their own States respectively. 

44. There are limitations in the federal Constitution, of the 
powers of the State Legislatures, by the express prohibitions in it 
of certain powers to the several States or the Legislatures thereof, 
and by the grant of some exclusive power to Congress or the 
general government, (j) 

45. The powers of the State Legislatures may be classed, as 
powers granted, expressly or impliedly, and powers prohibited or 
limited. 

46. The powers of the State Legislatures are granted in the 
Constitutions respectively, for the most part, in general terms, and 
by conferring express powers or imposing duties which necessarily 
imply them. 

47. The limitations of these powers in the State Constitutions 
are by specific prohibitions, or limitations, or by provisions and 
declarations involving the same, (k) 

48. The rule of construction, then, as to the power of the Legis- 

(j) See Part I. chap. V. (k) See Part II. chap. UI. 



CH. IV.] STATE LEGISLATURES. 249 

lature of tlio States, under their Constitutions respectively, is, that 
the grant of power is general, and the prohibition or limitation of 
it is special. 

A different rule prevails as to the construction of the powers of 
Congress, or the general government, under the federal Constitu- 
tion ; as has been seen in the first part of this work.(?) 

49. The powers conferred on the Legislature of a State, by its 
Constitution, are those so conferred by having vested in it the Legis- 
lative power of the State, and those which are specific powers ex- 
pressly granted. 

50. A Legislature by having vested in it the legislative power 
of the State, possesses all the general and necessary power of the 
Legislature of a free government ; not prohibited to it by the Con- 
stitution of the United States, or that of the State, or contrary to 
any provision thereof. 

In some States it is expressly provided, in their Constitutions, 
' ' that the Legislature shall have power to make all laws which 
tbey shall deem necessary and proper for the good of the State, and 
which shall not be repugnant to the Constitution." Georgia. 

61. The powers prohibited to the Legislature of a State, by its 
Constitution, are those specific powers expressly forbidden and those 
which are contrary to any provision of the Constitution. 

52. There are powers which may be exercised concurrently by 
Congress and the State Legislature. They are called concurrent 
powers, and have been treated of here in the order of the general 
subject. (??i) 

53. The nature and extent of the powers of the Legislature of a 
State, in reference to the relation of the State to the general gov- 
ernment, and in regard to the general subjects on which Congress 
has legislated, are matters of great importance. It will be seen, 
that the nature of this relation, and the distinctions growing out of 
it, have been kept in view in the previous parts of this work, and 
throughout it. It has been the aim, to present the general prin- 
ciples applicable to the subject, in their proper connection, (n) 

54. The principles and rules of construction, which have been 
given, in reference to the powers of Congress, have a material 
bearing, in many respects, as to the authority of a State Legisla- 
ture ; as those are important also, for that purpose, which relate to 
the construction of Constitutions in general, and to constitutional 
law.(o) 

Eleciion of Senators and Representatives in Congress. 

55. There are certain duties prescribed by the federal Constitu- 

(l) See Part I, cliapt. Ill, II. 

(m) See Part I, chapt. I, p. 24, chapt. II, p. 33, and cliapt III, p. 50, 51. 

(n) See Part I, cliapt. II, III. (o) See part I. chapt. II. 



250 STATE LEGISLATURES. [PART H. 

tion, to the several State Legislatures, in respect to the election of 
Senators and Representatives in Congress. 

"The Senate of the United States, shall be composed of two 
Senators from each State, chosen by the Legislature thereof, for 
six years." Cons, of U. S. Art. 1. Sect. 3. 

"The times, places, and manner of holding elections for Sena- 
tors and Representatives, shall be prescribed in each State, by the 
Legislature thereof, but the Congress may, at 'any time, bylaw,, 
make or alter such regulations, except as to tlie place of choosing 
Senators." Cons, of U. S., Art. I. Sect. 4. 

These subjects are treated of also, in Part I. chapter III. 

Appointments to office. 

56. In many of the States it is provided by their Constitutions, 
that certain officers shall be appointed by the Legislature of the 
State, or by the Senate ; or that they shall be nominated by the 
Governor of the State, and be appointed by and with the appro- 
bation of the Legislature or of the Senate. And in some States 
the power of appointing officers, except in particular cases, may 
be prescribed by law, and of course may be vested in the Legisla- 
ture of the State. 

In some States, it is provided by the Constitution of a State 
that in elections to office by the Legislature the vote shall be given 
viva voce, as in North Carolina, Virginia. 

Impeachments. 

57. It is generally provided in the State Constitutions that all 
ci^il officers of the State may be impeached for misdemeanor in 
office. Impeachments are, mostly, preferred by the House of 
Representatives of the State, and tried by the Senate. 

Revenue. Taxes. 

59. In some of the States, by their Constitutions, two-thirds 
of the members of their Legislatures respectively must be present 
in order to raise a State tax. 

' ' All bills for raising revenue shall originate in the House of 
Representatives, but the Senate may amend or reject, as in other 
bills." Cons, of Indiana, Mississippi. 

' ' All bills for raising revenue shall originate in the House of 
Representatives, but the Senate may propose amendments as in 
other bills : provided that they shall not introduce any new matter, 
under color of an amendment, which does not relate to raising a 
revenue." Cons, of Louisiana, Maine, Kentucky. 

60. In general, a Legislature may tax for State purposes, con- 
sistently with the federal Constitution and that of the State, all 
estates and property, in such manner as it may deem proper. 



CH. IV.] STATE LEGISLATURES, 251 

' ' All property shall be taxed according to its value ; that Talue 
to be ascertained in such manner as the Legislature shall direct, 
so that the same shall be equal and uniform throughout the State. 
Xo one species of property, from which a tax may be collected, 
shall be taxed higher than any other species of property of equal 
value. But the Legislature shall have power to tax merchants, 
pedlars and other privileges, in such manner as they may, from 
\ime to time, direct. A tax on white polls shall be laid, in such 
manner and of such an amount, as maybe prescribed bylaw." 
Cons, of Tennessee. 

' ' No article manufactured of the produce of this State shall be 
taxed otherwise than to pay inspection fees." Cons, of Ten- 
nessee. 

"Nor shall lands belonging to persons residing out of the limits 
of the State ever be taxed higher than the lands belonging to 
persons residing within the State." Cons, of Missouri. 

" The mode of levying a tax shall be by valuation ; so that every 
person shall pay a tax in proportion to the value of the property 
which he or she has in his or her possession." Cons, of Illinois. 

' ' The Legislature shall provide for an annual sum sufficient to 
defray the estimated expenses of the State for each year ; and 
whenever the expenses for any year shall exceed the income, the 
Legislature shall provide for levying a tax for the ensuing year, 
sufficient, with other sources of income, to pay the deficiency, as 
well as the estimated expenses of such ensuing year." Cons, of 
Wisconsin. 

App7'opriation of money. 

61. "No appropriation of money shall be made for a longer 
period than two years ; except for purposes of education ; and no 
appropriation for private or individual purposes, or for purposes of 
internal improvement, shall be made without the concurrence of two- 
thirds of the Legislature." Cons, of Texas. 

"Nor shall any appropriation of money for the support of aa 
army be made for a longer period than one year. " Cons, of 
Kentucky. 

State debts and loans. 

62. In some States the power of the Legislatures to make loans, 
or contract debts, or provide therefor, is constitutionally limited. 

" The aggregate amount of debts hereafter contracted by the 
Legislature shall never exceed the sum of one hundred thousand 
dollars, except in case of war, to repel invasions, or suppress insur- 
rections ; and in no case shall any amount be borrowed, except by 
a vote of two-thirds of both houses of the Legislature. " Cons, of 
Texas. 



252 STATE LEGISLATUBES. L^ART H. 

"]S'o law shall ever be passed to raise a loan of money upon the 
credit of the State, or to pledge the faith of the State for the pay- 
ment or redemption of any loan or debt, unless such law be pro- 
posed in the Senate or House of Representatives, and be agreed to 
by a majority of the members of each House, and entered on the 
journals with the yeas and nays taken thereon, and be refeiTed to 
the next succeeding Legislature, and published for three months 
previous to the next regular election, in three newspapers of the 
State, and unless a majority of each branch of the Legislature, so 
elected, after such publication, shall agree to and pass such law ; 
and in such ease the yeas and nays shall be taken and entered on 
the journals of each House." Cons, of 3Iississi2Dpi. 

"The credit of the State shall not in any manner be given or 
loaned to, or in aid of any individual, association or corporation ; 
aor shall the State directly or indirectly become a stockholder in 
any association or corporation." Cons, of California, loica. 

"The Legislature shall not in any manner create any debt, 
debts, or liability, which shall singly or in the aggregate with any 
previous debts, or liabilities, exceed the sum of three hundred thou- 
sand dollars, except in case of war, to repel invasion or suppress in- 
surrection, unless the same shall be authorized by some law for 
some single object or work, to be distinctly specified therein, which 
law shall- provide ways and means, exclusive of loans, for the pay- 
ment of the interest of such debt or liability, as it falls due, and 
also pay and discharge the principal of such debt or liability with- 
in twenty years from the time of contracting thereof, and shall be 
unrepealable until the principal and interest thereon shall be dis- 
charged ; but no such law shall take effect until, at a general elec- 
tion, it shall be submitted to the people, and have received a ma- 
jority of all the votes cast for and against it at such election." 
Cons, of California, Iowa. 

Corporations. 

63. ' ' Xo private corporation shall be created unless the bill 
creating it shall be passed by two-thirds of both Houses of the 
Legislature ; and two-thirds of the Legislature shall have power 
to repeal and revoke, all private coi*poration3, by making compen- 
sation for the franchise ; and the State shall not be part owner of 
the stock or property belonging to any private corporation. ' ' 
Cons, of Texas. 

" Xo law hereafter enacted shall create, renew or extend the 
charter of more than one corporation, ' ' Cotis. of Pennsylvania, 
Art. I, Sec. XXY. 

" No Act of incorporation, except for the renewal of existing 
corporations, shall be hereafter enacted without the concurrence 
of two-thirds of each branch of the Legislature, and with a re- 



CH IV. j STATE LEGISLATtTRES, 253 

served power of revocation by the Legislature ; and no Act of in- 
coq^oration which may be hereafter enacted shall continue in force 
for a longer period than twenty years, without the re-enactment of 
the Legislature, unless it be an incorporation for public improve- 
ment." Cons, of Delaware, 

" Corporations may be formed under general laws, but shall not 
be created by special Act, except for municipal purposes. All 
general laws, or special Acts, passed pursuant to this section, may 
be altered from time to time or repealed." Cons, of California, 

"Dues from corporations shall be secured by such individual 
liability of the corporators, and other means, as may be prescribed 
by law. ' ' Cons, of California. 

Each stockholder of a corporation, or joint-stock association, 
shall be individually and personally liable for his pi'oportion of all 
its debts and liabilities. Cons, of California. 

' ' The State shall not, directly or indirectly, become a stockholder 
in any corporation. " Cons, of California, Iowa. 

Currency. 

64. " And in no case shall the Legislature have power to issue 
treasury warrants, treasury notes, or paper of any description, in- 
tended to circulate as money." Cons, of Texas. 

The Legislature shall prohibit, by law, individuals from issuing 
bills, checks, promissory notes or other paper, to circulate as 
money." Cons, of Texas. 

Banks. 

65. In some States it is constitutionally provided that no banks 
shall be incorporated. 

' ' No corporate body shall hereafter be created, renewed or ex- 
tended, with banking or discounting privileges." Cons, of 
Texas. 

" No corporate body shall be hereafter created, renewed or ex- 
tended, with banking or discounting privileges, without six months 
previous public notice of the intended application for the same, in 
such manner as shall be prescribed by law. Nor shall any charter 
for the purposes aforesaid be granted for a longer period than 
twenty years, and every such charter shall contain a clause reserv- 
ing to the Legislature the power to alter, revoke or annul the same, 
whenever in the opinion of the Legislature it may be injurious to 
the citizens of the Commonwealth, in such manner, however, that 
no injustice shall be done to the corporators, " Cons, of Pa., 
Art. I, Sect. XXV. 

' ' One State Bank may be established with such a number of 
branches as the General Assembly shall from time to time deem 
expedient : Provided, that no branch bank shall be established, nor 

22 



254 STATE LEGISLATURES. [PART n. 

bank charter renewed, under the authority of the State, without 
the concurrence of two-thirds of both Houses of the General As- 
sembly ; and provi-ded, also, that not more than one bank or branch 
bank shall be established, nor bank charter renewed, at one session 
of the General Assembly ; nor shall any bank or branch be estab- 
•lished, or bank charter be renewed, but in conformity with the fol- 
lowing provisions : 

1. At least two-fifths of the capital stock shall be reserved for 
the State. 

2. A proportion of power in the direction of the bank shall 
he reserved to the State, equal at least to its proportion of stock 
therein. 

3. The State, and the individual stockholders, shall be liable 
respectively, for the debts of the bank, in proportion to their stock 
holden therein. 

4. The remedy for collecting debts shall be reciprocal, for and 
against the banks. 

5. 1^0 bank shall commence operations until half of the capital 
stock subscribed for, be actually paid, in gold or silver, which 
amount shall in no case, be less than one hundred thousand dollars. 

6. In case any bank or branch bank shall neglect or refuse to 
pay, on demand, any bill, note or obligation, issued by the corpor- 
ation, according to the promise therein expressed, the holder of 
any such note, bill or obligation, shall be entitled to receive and 
;i'ecover interest thereon, until the same shall be paid, or specie 
payments be resumed by the said bank, at the rate of twelve per 
cent, per annum from the date of such demand, unless the General 
Assembly shall sanction such suspension of specie payments ; and 
the General Assembly shall have power, after such neglect or refusal, 
to adopt such measures as they shall deem proper to protect and 
secure the rights of all concerned, and to declare the charter of the 
bank forfeited. 

T. After the establishment of a general State bank, the banks 
of the State now existing may be admitted as branches thereof, 
upon such terms as the Legislature and the said banks shall agree, 
subject, nevertheless, to the preceding rules." Cons, of Ala- 
bama. 

"There shall not be established or incorporated in this State 
jiny bank or banking company, or moneyed institution, for the pur- 
pose of issuing bills of credit, or bills payable to order or bearer : 
Provided, that nothing herein contained shall be so construed as to 
prevent the General Assembly from establishing a State bank and 
branches, not exceeding one branch for any three counties, to be 
established at such places within the said counties as the directors 
of the State bank may select ; provided, there be subscribed and 
paid in specie, on the part of the individuals, a sum equal to thirty 
thousand dollars," Cons., of the State of Indiana, 



CH. IV ] STATE LEGISLATURES. 355 

' ' That there shall be no banks or moneyed institutions in this 
State but those ah-eady provided by law, except a State bank and 
its branches, which may be established and regulated by the General 
Assembly of the State as they may think proper." Cons, of 
Illinois. 

' ' The General Assembly may incorporate one banking company 
and no more, to be in operation at the same time. " 

' ' The bank to be incorporated may have any number of branches, 
not to exceed five, to be established by law ; and not more than 
one branch shall be established at any one session of the General 
Assembly, The capital stock of the bank to be incorporated shall 
never exceed five millions of dollars, at least one-third of which 
shall be reserved for the use of the State." Co7is. a/Mississippi. 

' ' The Legislature shall have no power to pass any Act granting 
any charter for banking purposes ; but associations may be formed 
under general laws for the deposit of gold and silver ; but no such 
association shall make, issue, or put in circulation, any bill, check, 
ticket, certificate, promissory note, or other paper, or the paper 
of any bank, to circulate as money." Cons, of California. 

" The Legislature shall prohibit by law any person or persons, 
association, company or corporation, from exercising the privileges 
of banking, or creating paper to circulate as money." Cons, of 
California. 

Cities and boroughs. 

' ' It shall be the duty of the Legislature to provide for the 
organization of cities and incorporated villages, and to restrict 
their power of taxation, assessment, borrowing money, contracting 
debts and loaning their credit, so as to prevent abuses in assess- 
ments and contracting debts by such municipal corporations. '^Cons. 
of California. 

Treasury, and State treasurer. 

66. It is generally directed by the Constitution of a State, that 
no money shall be drawn from the treasury but in consequence of 
appropriations made by law. 

In most of the States the State Treasurer is elected by the 
Legislature ; and, when it consists of two branches, by the joint 
votes of both. 

In most of the States, it is a constitutional provision that an 
accurate statement of the receipt and expenditure of the public 
money shall be attached to, and published with the laws of the 
State, at every annual session of the Legislature. 

Education. 

67. It is generally required by the Constitutions of the States 



256 STATE LEGISLATURES. [PART FV. 

that education and learning shall be promoted in schools, colleges 
and academies. 

In many instances it is made the duty of the Legislature of the 
State to establish a general system of education, whereby all 
children may be taught gratis. 

The General Assembly shall — "provide bylaw for a general 
system of educf.tion, ascending in a regular gradation from town- 
ship schools to a State University, wherein tuition shall be taught 
gratis, and free to all." Indiana. 

In some States, the constitutional requirement is : 

"The Legislature shall, as soon as conveniently may be, pro- 
■ vide for the establishment of schools throughout the State, in such 
manner that the poor may be taught gratis. ' ' Cons, of Pennsyl- 
vania, Art. YII, sect. I. 

' ' The arts and sciences shall be promoted in one or more semi- 
naries of learning. " Cons, of Pennsylvania, Art. YII, sect. II. 

' ' Schools shall be established by the Legislature, for the con- 
venient instruction of youth, with such salaries to the masters paid 
by the public, as may enable them to instruct at low prices ; and 
all useful learning shall be duly encouraged in one or more semi- 
naries. " North Carolina. 

In some instances it is provided, that there shall be a school 
fund established, or preserved, to be perpetual, the interest whereof 
to be inviolably appropriated to the support of common schools 
throughout the particular State. 

See the head Education, in Part I, chap. III. 

"The Legislature shall as early as practicable establish free 
schools throughout the State, and shall furnish means for their sup- 
port by taxation on property ; and it shall be the duty of the Legis- 
lature to set apart not less than one-tenth of the annual revenue of 
the State derivable from taxation, as a perpetual fund, which fund 
shall be appropriated to the support of free public schools. " Cons, 
of Texas. 

' ' The proceeds of all land that may be granted by the United 
States to this State for the support of schools, which may be sold 
or disposed of, and the five hundred thousand acres of land granted 
to the new States, under the Act of Congress, distributing the pro- 
ceeds of the public lands among the several States of the Union, 
approved A.D., 1841; and all estates of deceased persons who 
may have died without leaving a will, or heir, and all such per cent, 
as may be granted by Congress on the sale of lands in this State, 
shall be and remain a perpetual fund, the interest of which, to- 
gether with all the rents of the unsold lands, and such other means 
as the Legislature may provide, shall be inviolably appropriated 
to the support of common schools throughout the State. ' ' Cons, 
of California, Iowa. 



Cri. IV. ] STATE LEGISLATURES. 25T 

la some of the States it is directed by their Constitutions, that 
provision shall be made by law for the establishment of a State 
University, and of a sufficient number of colleges. 

By some of these Constitutions it is provided, that the land 
granted to the State for the support of a university, shall be a per- 
petual fund for that purpose. 

Diffusion of knowledge 

68. "The General Assembly, at the time they lay off a new- 
county, shall cause at least ten per cent, to be reserved out of the 
proceeds of the sale of town-lots, in the seat of justice of such 
county, for the use of a public library for such county ; and at the 
same session, they shall incorporate a library company, under such 
rules and regulations, as shall best secure its permanence and extend 
its benefits. ' ' 

Beneficent asiilums and institutions. 

69. "It shall be the duty of the General Assembly, " "to provide 
one or more farms to be an asylum for those persons who, by reason 
of age, infirmity, or other misfortunes, may have a claim upon the 
aid and beneficence of society, on such principles that such persons 
may therein find employment and every reasonable comfort, and lose, 
by their usefulness, the degrading sense of dependence. " Cons, 
of Indiana. 

Lotteries. 

70. In many of the State Constitutions, the Legislatures are 
))rohibited to authorize lotteries, and required to prevent them. 

' ' No lottery shall be authorized by the State ; and the buying 
and selling lottery tickets within this State is prohibited." Conn. 
<f Texas, California, loiva. 

The Legislature shall have no power to authorize lotteries, for 
any purpose, and shall pass laws to prohibit the sale of lottery 
tickets in the State." Co7is. of Tennessee. 

Divorces. 

TL In some States the Legislatures are constitutionally re- 
strained altogether from granting divorces ; in other States, they 
are restricted in their power to do so. 

"No divorce shall be granted by the Legislature.'' Cons, of 
Texas, California, loiva. 

' ' The Legislature shall have no power to grant divorces, but 
may authorize the courts of justice to grant them for such causes 
as may be specified by law ; provided, that such laws be general 
and uniform in their operation throughout the State." Cons, of 
Tennessee. 

22* 



'•^,58 STATE LEGISLATURES. [PART TI. 

In some States the Legislatures have power, by the Constitution, 
to pass general laws regulating divorces and alimony ; but not to 
grant divorce or alimony in any particular case. Cons, of North 
Carolina. 

"Divorces from the bonds of matrimony, shall not be granted, 
but in cases provided for by law, by suit in chancery. ' ' Cons, of 
3Iississippi , Alabama. 

" The Legislature shall not have power to enact laws annulling 
the contract of marriage in any case where, by law, the courts of 
this Commonwealth are or hereafter may be empowered to decree 
a divorce. " Con^. of Penna., Art. I, Sect. XIV. 

Rights of married tvomen. 

72. In some States the Constitutions contain provisions secur- 
ing, or requiring legislation in order to secure to married women 
their separate property, for their sole use and benefit, free from the 
control of their husbands, and from liability for their debts ; to a 
greater or less extent. 

' ' All property, both real and personal, of the vidfe, owned and 
claimed hy her before marriage, and that acquired afterwards by 
gift or descent, shall be her separate property ; and laws shall be 
passed more clearly defining the rights of the wife in relation as 
well to her separate property, as that held in common with her 
husband." Cons, of Texas, California. 

Debtors'' 2)ro2:)eriy. Homestead. 

73. " The homestead of a family, not to exceed two hundred 
acres of land, (not included in any town or city, or any town or 
city lot or lots, ) in value not to exceed two thousand dollars, shall 
not be subject to forced sale for any debt or debts hereafter con- 
tracted ; nor shall the owner, if a married man, be at liberty to 
alienate the same, unless by the consent of his wife, in such man- 
ner as the Legislature may hereafter point out. " Cons, of Texas. 

" The Legislature shall protect by law from forced sale a certain 
portion of the homestead or other property of all heads of fami- 
lies. " Cons, of California. 

The privilege of the debtor to enjoy the necessary comforts of 
life, shall be recognized by wholesome laws, exempting a reason- 
able amount of property from seizure or sale, for the payment of 
any debt or liability hereafter contracted. Cons, of Wisconsin. 

Interest for money. Usury. 

74. The Legislature shall fix the rate of interest ; and the rate 
so established shall be equal and uniform throughout the State." 
Con^. of Tennessee. 



OH. IV.] STATE LEGISLATURES. 259 

Private laws. 

75. " The General Assembly shall not have power to pass any 
private laws to alter the name of any person, or to legitimize any 
person not born in lawful wedlock, or to restore to the rights of 
citizenship any person convicted of any infamous crime, but shall 
have power to pass general laws regulating the same. " Cons, of 
North Carolina. 

" The General Assembly shall not pass any private laws, unless 
it shall be made to appear that thirty days notice of application to 
pass such laws shall have been given, under such directions and in 
such manner as shall be prescribed by law. " Cons, of North 
Carolina. 

Suits against the State. 

76. " The General Assembly shall direct by law in what man- 
ner, and in what courts, suits may be brought against the Common- 
wealth. " Cons, of Kentucky, Alabama, Missouri, Mississippi, 
Wisconsin. 

Suits may be brought against the State, according to such re- 
gulations as shall be made by law. Cons, of Delaware. 

Taking private property for public use, 

77. " The Legislature shall not invest any corporate body or 
individual with the privilege of taking private property for public 
use, without requiring such corporation or individual to make com- 
pensation to the owner of said property, or give security therefor, 
before such property shall be taken." Cons, of Pennsylvania, 
Art VII, Sect. IV. 

In the Declarations or Bills of Rights, and Constitutions of the 
several States, in general, there are provisions for securing private 
property and the obligation of contracts, which have been stated, 
with observations thereon, in a preceding chapter of this work, {p) 

According to. the system of the distribution of the powers of 
government among distinct departments, the grant of legislative 
authority does not include the power to put a binding construction, 
as to meaning and interpretation, on former or existing laws or 
statutes, so as to effect private rights. A legislature cannot au- 
thoritively declare what the law is, or has been, but only what it 
shall be. {q) 

Slaves, servants, 

78. " The General Assembly shall not have power to pass laws ; 
1. For the emancipation of slaves without the consent of their 

(p) See " State Bills of Rights, &c." Part II, chap. III- 
(g) 2 Cranch's Rep. 272 ; 4 Pick. Rep, 23. 



-2Q0 STATE LEGISLATURES. [PART II, 

owners, or without paying them, before such emancipation a fall 
equivalent for such slaves so emancipated : and 

2. To prevent bona fide emigrants to this State, or actual set- 
tlers therein, from bringing from any of the United States, or from 
any of their Territories, such persons as may be then deemed to be 
slaves, so long as any persons of the same description are allowed 
to be held as slaves by the laws of this State. 

They shall have power to pass laws, 

1. To prohibit the introduction into this State of any slaves 
who may have committed any high crime in any other State or 
Territory. 

2. To prohibit the introduction of any slave for the purpose of 
speculation, or as an article of trade or merchandize. 

3. To prohibit the introduction of any slave, or the offspring 
of any slave, who heretofore may have been, or who hereafter may 
be imported ft'om any foreign country into the United States, or 
any Territory thereof, iu contravention of any existing statute of 
the United States ; 

4. To permit the owners of slaves to emancipate them, saving 
the rights of creditors, where the person so emancipating will give 
security that the slave so emancipated shall not become a public 
charge. 

It shall be their duty, as soon as may be, to pass such laws as 
may be necessary : 

1. To prevent negroes and mulattoes from coming to, or set- 
tling in, this State, under any pretext whatsoever ; and 

2. To oblige the owners of slaves to treat them with humanity, 
and to abstain from all injuries to them extending to life or limb. 

' ' In prosecuting for crimes, slaves shall not be deprived of an 
impartial trial by jury, and a slave convicted of a capital offence 
shall suffer the same degree of punishment, and no other, that 
would be inflicted on a white person for a like offence ; and courts 
of justice, before whom slaves shall be tried, shall assign them 
counsel for their defence." 

' ' Any person who shall maliciously deprive of life, or dismem- 
ber a slave, shall suffer such punishment as would be inflicted for 
the like offence if it were committed on a free white person.'" 
Cons, of Missouri. 

" The General Assembly shall have no power to pass laws for 
the emancipation of slaves without the consent of their owners, or 
without paying their owners, previous to such emancipation, a full 
equivalent in money for the slaves so emancipated. They shall 
have no power to prevent emigrants to this State from bringing 
with them such persons as are deemed slaves by the laws of any 
one of the United States, so long as any person of the same age 
or description shall be continued in slaveiy by the laws of this 



CH. IV.] STATE LEQISIiATUBES. 2^1 

State : Provided, that such slave be the hona fide property of such 
emigrants : Provided, also, that lawrs may be passed to prohibit 
the introduction into this State of slaves who have committed high 
crimes in other States or territories. They shall have power to 
pass laws to permit owners of slaves to emancipate them, saving 
the rights of creditors, and preventing them from becoming a 
public charge. " Cons, of Alabama, Kentucky. 

' ' They shall have full power to prevent slaves from being 
brought into this State as merchandise, and also oblige the owners 
of slaves to treat them with humanity ; to provide for their neces- 
sary food and clothing ; to abstain from all injuries to them extend- 
ing to life or limb ; and, in case of their neglect or refusal to 
comply with the directions of such laws, to have such slave or 
slaves taken from such owner and sold for the benefit of such 
owner or owners. " Cons, of Alabama, Kentucky. 

' ' The Legislature shall have no power to pass laws for the 
emancipation of slaves without the consent of their owners, unless 
where the slave shall have rendered some distinguished service 
to the State, in which case the owner shall be paid a full equiva- 
lent for the slave so emancipated. They shall have no power to 
prevent emigrants to this State from bringing with them such 
persons as are deemed slaves by the laws of any one of the United 
States, so long as any person of the same age or description shall 
be continued in slavery by the laws of this State : Provided, that 
such person or slave be the bona fide property of such emigrants ; 
and provided also, that laws may be passed to prohibit the intro- 
duction into this State of slaves who may have committed high 
^riraes in other States. They shall have full power to pass laws 
fj permit the owners of slaves to emancipate them, saving the 
rights of creditors, and preventing them from becoming a public 
charge." 

' ' The introduction into this State of slaves for merchandise, or 
for sale, shall be prohibited from and after the first day of May, 
eighteen hundred and thirty-three : Provided, that the actual 
settler or settlers shall not be prohibited from purchasing slaves in 
any State in this Union, and bringing them into this State for 
their own individual use, until the year eighteen hundred and 
forty- five." 

" In the prosecution of slaves for crimes of which the punish- 
ment is not capital, no inquest by a grand jury shall be necessary ; 
but the proceedings in such cases shall be regulated by law." 
Cons, of Ilississippi. 

■" The General Assembly shall have power to prevent any slaves 
being brought into this State, who have been, since the first day 
of January, ItSO, or may hereafter be imported into any of the 
United States from a foreign country." Cons. 0/ Kentucky. 



262 STATE LEGISLATURES, [PART H. 

'• In the prosecution of slaves for felony, no inquest by a grand 
jury shall be neeessaiy, but the proceedings in such prosecutions 
shall be regulated by law ; except that the General Assembly shall 
have no power to deprive them of the privilege of an impartial 
trial by a petit jury. " Cons-, of Kentucky. 

"There shall be no future importation of slaves into this State, 
from Afi'ica or any foreign place. The Legislature shall have no 
power to pass laws for the emanicipation of slaves without the 
consent of each of their respective owners, previous to such eman- 
cipation. They shall have no power to prevent emigrants from 
either of the United States to this State, from bringing with them 
such persons as may be deemed slaves by the laws of any one of 
the United States." Cons, of Georgia. 

"Any person who shall maliciously dismember or deprive a 
slave of life, shall suffer such punishment as would be inflicted in 
case the like offence had been committed on a free white person, 
and on the like proof, except in case of iusun-ection by such slave, 
and unless such death should happen by accident, in giving such 
slave moderate correction. " Cons, of Georgia. 

See this head in Part I. chap. I, and in Part II, chap. Ill, YII. 

Compensation of officers^ &c. 

"The Legislature shall never grant any extra compensation to 
any public officer, agent, servant or contractor, after the services 
shall have been rendered, or the contract entered into. Xor shall 
the compensation of any public officer be increased or diminished 
during his term of office." Cons, of Wisconsin. See Part II, 
chap. YII. 

Free negroes and mulatfoes. 

79. " It shall be the duty of the General Assembly, as soon as 
may be, to pass such laws as may be necessary, to prevent free 
negroes and mulattoes fi'om coming to, and settling in this State, 
under any pretext whatsoever. " Cons, of Missouri. 

"All fi'ee men of color shall be exempt from military dutyiu 
time of peace, and also fi-om paying a free poll tax." Cons, of 
Tennessee. 

Entailments, right of primogeniture. 

80. " The Legislature shall regulate entails in such a manner 
as to prevent perpetuities,'' Cons, of Vermont. 

'•' The Legislature shall, as soon as maybe convenient, pass laws 
for the abolition of the rights of primogeniture, and for giving an 
equitable distribution of the real estate of intestates.'' Con^ of 
^uth Carolina, 



CII. IV.] STATE LEGISLATURES. 263 

Dueling. 

81. The Constitutions of some of the States provide that per- 
sons who shall fight a duel, or be concerned therein, or who shall 
send, carry and accept a challenge for that purpose, shall be de- 
prived of the right to hold any office of honor or profit in the State, 
and be otherwise punished as the Legislature may prescribe." 
Cons of Tennessee. 

' ' The Legislature shall pass such laws to prevent the evil prac- 
tice of dueling as they may deem necessary, and may require all 
officei'S, before they enter on the duties of their respective offices" 
to take an oath or affirmation, declaring that they have not been 
engaged in a duel, and will not be so engaged during their con- 
tinuance in office. ' ' Cons, of Mississippi. 

Arbitrations, 

82. " It shall be the duty of the General Assembly to pass such 
laws as may be necessary and proper to decide differences by arbi- 
trators, to be appointed by the parties who may choose that sum- 
mary mode of adjustment. " Cons, of Kentucky, Louisiana. 

Internal improvements. 

83. "Laternal improvements shall for ever be encouraged by 
the government ; and it shall be the duty of the General Assembly 
as soon as may be, to make provision by law for ascertaining the 
most proper object of improvement, in relation both to roads and 
navigable waters ; and it shall ))e their duty to provide by law for 
a systematic and economical application of the funds appropriated 
to these objects.." Cons, of Mississippi, Alabama. 

Rights of accused persons. 

84. "No costs shall be paid by a person accused on a bill 
being returned ignoramus, nor on acquittal by a jury. " Cons, of 
Delaware, Art. YII, Y. 

Rejected bills in the Legislature. 

85. " After a bill has been rejected, no bill containing the 
6-ame substance shall be passed into a lawduringthe same session." 
Cons, of Tennessee. 

' ' No bill or ordinance which shall have been rejected by either 
House, shall be brought in again dnring the session, under the 
same or any other title, without the consent of two-thirds of each 
branch." Cons, of Georgia. 

" Without leave of the House, and notice of six days being pre- 
viously given. " Cons, of South Carolina. 



264 STATE LEGISLATUKES. [PART U. 

Titles of laws. 

86. ' ' Nor shall any law or ordinance pass, containing any mat- 
ter different from what is expressed in the title thereof." Cotis. 
of Georgia 

" Every law enacted by the Legislature shall embrace but one 
object, and that shall be expressed in the title.'' Cons, of Texas. 

"ISTo law shall be renewed or amended by reference to its title, 
but in such case, the Act revised or section amended, shall be re- 
enacted and published at length. " Cons, of Texas, California* 

Povjer of the Governor or council as to legislation. 

87. In most of the States, there is constitutionally vested in 
the Governor, or, as it may be, the Council of the State, a parti- 
cular and qualified power in regard to bills and resolutions passed 
by the Legislature. 

This provision is not to be considered as an exception to the 
principle according to which the powers of government are distri- 
buted among several distinct departments. There is no absolute, 
final interference with the authority of the Legislature allowed 
thereby. The regulation is designed to secure the results of its 
deliberate, equal and constitutional action. And as a part of the 
connected system existing in a State government it tends to make 
up the symmetry and strength of the structure. 

In most of the States, this power of the Governor of a State, 
extends only to the approving or disapproving, with a qualified effect, 
bills or resolutions passed by the Legislature ; in other States the 
Governor and Council may also, propose amendments to such bills 
or resolutions. 

In Yermont it is provided by its Constitution, that ''all bills 
which originate in the Assembly shall be laid before the Governor 
and Council for their revision and concurrence, or proposals of 
amendments ; who shall return the same to the Assembly with their 
proposals of amendments, if any, in writing, and if the same are 
not agreed to by the Assembly, it shall be in the power of the 
Governor and Council to suspend the passing of such bill until the 
next session of the Legislature." 

In Illinois the constitutional provision is as follows: "The 
Governor for the time being, and the Judges of the Supreme Court, 
or a major part of them, together with the Governor, shall be and 
are hereby constituted a council to revise all bills about to be passed 
into laws by the General Assembly ; and for that purpose shall 
assemble themselves from time to time when the General Assembly 
shall be convened ; for which nevertheless they shall not receive 
any salary or consideration, under any pretence whatever ; and all 
bills which have passed the Senate and House of Representatives, 



CH. IV.] STATE LEGISL.VTURES. 265 

shall, before they become laws, be presented to the said council for 
revision and reconsideration ; and if upon such revision and con- 
sideration, it should appear improper to the said council, or a ma- 
jority of them, that the bill should become a law of the State, they 
shall return the same, together with their objections thereto, in 
writing, to the Senate or House of Representatives (in whichso- 
ever the same shall have originated,) who shall enter the objections 
set down by the council, at large, on their minutes, and proceed to 
reconsider the said bill. But if, after such reconsideration, the said 
Senate or House of Representatives shall, notwithstanding the 
said objections, agree to pass the same, by a majority of the whole 
number of members elected, it shall, together with the said object- 
ions, be sent to the other branch of the General Assembly, where 
it shall also be considered ; and if approved by a majority of all 
the members elected, it shall become a law. If any bill shall not 
be returned within ten days after it shall have been elected it shall 
become a law ; unless the General Assembly shall, by their ad- 
journment, render a return of the said bill in ten days impractica- 
ble, in which case the bill shall be returned on the first day of the 
meeting of the General Assembly after the expiration of the said 
ten days, or be a law." Cons, of Illinois. 

In most of the States the provision is substantially as follows : 
' ' Every bill which shall have passed both Houses, shall be pre- 
sented to the Governor ; if he approve, he shall sign it, but if not, 
he shall return it with his objections to the House in which it shall 
have originated, who shall enter the objections at large, upon the 
journal, and proceed to reconsider it ; if, after such reconsidera- 
tion, a majority of all the members elected to that House shall 
agree to pass the bill, it shall be sent, with the objections, to the 
other House, by which it shall likewise be reconsidered, and if 
approved by a majority of all the members elected to that House, 
it shall be a law ; but in such case the votes of both Houses shall 
be determined by yeas and nays, and the persons voting for or 
against the bill shall be entered on the journal of each House 
respectively ; if any bill shall not be returned by the Governor 
within ten days (Sundays excepted) after it shall have been pre- 
sented to him, it shall be law in like manner as if he had signed 
it, unless the General Assembly, by their adjournment, prevent its 
return ; it which case it shall be a law, unless sent back within 
three days after their next meeting." Cons, of Kentucky. 

In some States, where such a return of a bill by the Governor 
is prevented by the adjournment of the Legislature, it is provided 
that the bill shall not be a law. 

In some States, it is provided, that a bill returned by the 
Govei'nor, with his objections to the Legislature, can be passed, 
on reconsideration, only by two-thirds of all the members elected 

23 



266 STATE LEGISLATURES. [PART H. 

to each House ; as in the States of Massachusetts, Maine, New 
Hampshire, New York, Pennsylvania, Mississippi. 

In other States, laws may be liually passed by the Legislature 
of the State without the bills therefor being presented to the 
Governor, or Council, for his or their assent, or any action thereon 
by him or them ; as in Delaware, Maryland, Yirgniia, North 
Carolina, South Carolina, Tennessee, Ohio. 

The power of a Grovernor of a State to disapprove a bill passed 
by the Legislature thereof, is called his "veto" power. When he 
thus disapproves a bill he is said to put "a qualified negative" 
on it. (a) 

Mode of enacting laws. 

88- In general, all laws may originate in, and be agreed to, by 
either House of a State Legislature ; except that, in some States, 
laws for raising revenue must be proposed in the House of Repre- 
sentatives or Delegates of the State. (g) InYirginia all laws must 
originate in the House of Delegates. 

A "bill" in a Legislature, is a project or draft of a law, offered 
for consideration and adoption by a member or committee of either 
House, according to the rules thereof. It is so called until it is 
finally passed and enacted, when it is termed a law, or resolution, 
resolve, or Act of the Legislature. A law may be also passed by 
both Houses of a Legislature, and be enacted, in the form of a 
joint resolution of both Houses. 

On general principle, all the members of each House stand on 
equal footing, with respect to offering a resolution or bill, and the 
right of argument and debate. There are, however, rules of 
proceeding adopted by each House, as we have mentioned, whereby 
the application and exercise of these rights, and the mode of trans- 
acting its business, are regulated, (t) 

Grenerally, the decision of the majority of the members of a 
House is conclusive on any question or proposition ; but, it is 
provided otherwise, in regard to some matters, by the State Con- 
stitutions respectively, and the rule is varied or modified, as to 
other instances, by the rules of proceeding. The constitutional 
provisions have been already noticed. 

According to these rules there are standing committees appointed 
for each House, to continue during its session or existence, for 
examination and consideration of specific subjects of legislative 
inquiry, to which are referred all petitions, documents and papers 
relative thereto, and whose duty it is to report to the House the 
facts, with their opinion as to the expediency of any legislation 

(a) See Part I, cliap. VIII. (s) See above in this chapter, par. 59. 
(t) See " Rules of proceeding," in this chapter. 



CH. IV.] STATE LEGISLATURES. 267 

thereon, and to propose bills, either on their own sugg-estion, or 
as instructed by the House. Select committees are also appointed, 
from time to time, on particular subjects, on the resolution of the 
House, their powers to cease on the i)erformance of their special 
duties. The committees are directed to be formed, by the rule^ 
or resolutions of the House ; the members of whom they are to 
f^onsist being assigned by the President or Speaker, unless it is 
'otherwise specially ordered. 

Generally, bills or joint resolutions can only be introduced, iu 
either House, by its proper standing committees ; by special com- 
mittees, when so authorized ; or by a member, on special leave 
granted by a vote of the House. 

Usually, every bill or joint resolution, so introduced, is referred 
to the Committee of the whole House ; which consists of all the 
members ; a special chairman being appointed, the Speaker having 
left his seat, and partaking iu the debates, votes and proceedings 
as other members, and the proceedings being conducted in it with 
less formality and greater freedom of debate than in the House 
proper. 

It is generally required, by the rules of proceeding, that every 
bill or joint resolution shall be considered and agreed to two or 
three times, on so many different days, before its final passage, in 
either House. In some of the States it is so provided by their 
Constitutions. 

"No bill shall have the force of a law until on three several days 
it be read over in each House of the General Assembly, and free 
discussion allowed thereon ; unless, in cases of urgency, four-fifths 
of the House where the bill shall be depending may deem it expe- 
dient to dispense with this rule." Cons, of Kentucky, Louisiana, 
Mississippi, Alabama. See Cons, of Ohio, Indiana, Illinois, 
Missouri. 

"Every bill shall be read three times and on three separate days, 
in each branch of the General Assembly, before it shall pass, except 
in cases of actual invasion or insurrection. " Cons, of Georgia, 
South Carolina, Tennessee. 

Amendments to bills or joint resolutions may be made, on the 
offer or motion of any member, in the House in which it originated, 
at any time during its two first readings. 

Bills and resolutions are passed, and questions thereon decided, 
in either House, by a majority of the members present, a quorum 
attending ; except where the assent of a greater number is made 
necessary by the Constitution of the State, or the rules of the 
House. The Speaker or President votes thereon as any other 
member ; the bill, resolution, or question being considered as lost 
or not agreed to, when there is a tie in the votes of the members 
or an equal number for and against. In States in which the Lieu- 



268 STATE LEGISLATURES. [PART II. 

tenant-Governor presides in the Senate, he does not vote, except 
his casting vote, so called, in case of such a tie, and to determine 
the question. 

After a bill or resolution has been passed on second reading, the 
question before the House is whether it shall be engrossed for a 
third reading. 

When a bill or resolution, so engrossed, has been passed on third 
reading, in the House in which it originated, it is transmitted for 
concurrence to the other House ; where the Legislature consists of 
two branches, possessed of equal powers in regard to legislation. 

On general principles a bill or resolution which has been disagreed 
to, or rejected, may at any time be introduced or offered again. 
In some States, however, it is constitutionally provided that, after 
a bill has been rejected, no bill containing the same substance shall 
be offered or passed into a law during the same session, except with 
the consent of a prescribed number of each House. (^) 

A bill or resolution which has been passed on third reading by 
one House, and ti-ansmitted to the other, is referred to a committee, 
must be read and considered three times, and generally be acted 
on with the same forms, in its progress, and be subject to amend- 
ments, as if it had originated in the latter House. If amendments 
be made there, they must be acted upon by the former House, and 
if agreed to by it, the bill is passed ; if disagreed to, the House in 
which they were made must recede from them, whereon the bill is 
passed, or, if they are insisted upon by it, the bill fails, unless the 
two Houses, through committees of conference, or otherwise, agree 
on the subject In the case of some bills, as has been stated, the 
Senate has not power to make amendments. 

When a bill or joint resolution has been passed by the two Houses 
of the Legislature, it is delivered to a joint committee of the two 
Houses, for enrollment, whose duty it is to see that it is correctly 
copied, or to compare a copy of it with the bill ; it is then signed 
by the presiding officers and clerks of the two Houses, and pre- 
sented by a joint committee, when it is so required, to the Gov- 
ernor, or Governor and Council of the State, for his approval or 
disapproval of it. If it be so approved, it is signed by the Gov- 
ernor, and in some States sealed with the Great Seal of the State, 
and it then becomes a law, and is generally J51ed in the oflfice of 
the Secretary of State, or Rolls office. If the bill be disapproved 
by the Governor, or Council, where such authority exists, it is re- 
turned, with the objections thereto, to the House in which it origi- 
nated ; and it may become a law, without the approval and signature 
of the Governor, on being reconsidered and passed again by both 
Houses in the manner constitutionally provided; or on its not 

{t) See in this chapter, '' Rejected Bills." 



CH. IV.] STATE LEGISLATURES'. 260 

being thus retunied by the Govemor, or Council^ within the time 
so directed. Where, by the Constitution of a State, the Gorernor 
is not vested with any power as to approving or disapproving a bill^ 
it becomes a law, when it is finally passed, as above mentioned, by 
both Houses of the Leg-islatures, and regularly enrolled and au- 
thenticated. The proceedings on a bill in the Legislature consist- 
ing of only one body, for the enactment of a law, are analagous 
to those in other cases, so far as the latter apply. 

The authority of a (lovenior of a State with respect to bills 
passed by the Legislature is noticed, under proper heads, when 
referring to his powers and duties in general, (u) The remarks whicli 
have been made relative to the mode of enacting laws in Congress, 
will be found to be applicable to this subject ;(d) and there have 
also been presented under the appropriate heads in this chapter, 
various constitutional provisions, existing in some of the States, 
which have the same bearing. 

Publication and evidence of the Acts of Assembly or statutes 
of a State. 

89. The statute laws of the several States are published, as 
provided by law, in annual pamphlets, containing the laws of the 
State passed within the particular year ; in certain newspapers ; 
and, in some of the States, in compilations of the statute laws of 
the State, prepared as directed by law. These pamphlets and 
compilations are generally distributed at the expense of the State 
to the members of the Legislature, the chief State officers, the 
judges of the courts, the clerks of the courts, justices of the 
peace, and certain other State and county officers. 

The statute laws of a State are proved, in courts of justice and 
for all legal purjjoses, by exemplifications or certified copies of 
the original laws, by the Secretary of State, under the gi*eat seal 
of the State, or by the other officer, by whom they are filed and 
recorded, with the legally requisite authentication. The printed 
pamphlets of these laws, and compilations of them, published by 
authority of the State, are also declared by statute to be evidence 
of them. 

In regard to the proof of such laws in other States, it is declared 
by the federal Constitution, that "full faith and credit shall be 
given to the public acts and records of every other State ; and 
Congress may, by genei'al laws, prescribe the manner in which 
such acts and records shall be proved, and the efiect thereof. ' '' 
Art. IV. sect. I. By the Acts of Congress, of 1790 and 1804, 
legislative acts of the States are to be authenticated by the certifi- 
cate of the Secretary of State, and the great seal of the State. 

(u) See in this chapter, par. 87, .and further on chapter V. 
(v) See Part I. chapt. III. par. 

2S* 



210 STATE LEGISLATURES. [PART H. 

The nature and force of the statutes of a State, their constitu- 
tionality and construction, have been the subjects of notice, in that 
part of the work which relates to the laws, in general, of the 
several States. (■«) 

' ' All laws and judicial decisions shall be free for publication by 
any person, ' ' Go7is. of California. 

Fromulgation of the laws. 

' ' No Act of Assembly shall be in force until it shall have been 
published in print, unless in case of emergency." Gon^. of 
Indiana. 

" The Legislature shall, as soon as conveniently may be, provide, 
by law, for reducing the statutes, and all Acts of the General Assem- 
bly into such order, and publishing them in such manner, that thereby 
the knowledge of them may be generally diffused. " Co7is. of 
JDelaioare. 

Revision of laws, 

90. " Within five years after the adoption of this Constitution, 
the body of our laws, civil and criminal, shall be revised, digested 
and arranged under proper heads, and promulgated in such man- 
ner as the General Assembly shall direct ; and a like revision, 
digest and promulgation shall be made within every subsequent 
period of ten years." Cons, of Alabama, Missouri. 

Amendments of the Constitution. 

91. In the Constitution of every State, the right of the people 
to alter and amend the Constitution is recognized, and a mode 
prescribed for doing so. It is generally provided that the Legis- 
lature shall have power to call conventions of the people for the 
purpose, at its discretion ; or -with certain restrictions on the exer- 
cise of this power. In some instances, the Legislature is vested 
with power to make and adopt such alterations and amendments, 
in the manner prescribed. 

In most of the States, the Legislatures, in a manner prescribed, 
may agree upon specific alterations and amendments to be pro- 
posed to a convention to be called by it, the convention to act on 
no others. 

"Any amendment or amendments to this Constitution- may be 
proposed in the Senate or House of Representatives, and if the 
same shall be agreed to by a majority of the members elected to 
each House, such proposed amendment or amendments shall be 
entered on their journals, with the yeas and nays taken thereon, and 

(v) See Part II, chap. IL 



CH. IV.] STATE LEGISLATURES. 271 

the Secretary of the Commonwealth shall cause the same to be 
published three months before the next election, in at least one 
newspaper in every county in which a newspaper shall be published ; 
and if in the Legislature next afterwards chosen, such proposed 
amendment or amendments shall be agreed to by a majority of the 
members elected to each House, the Secretary of the Common- 
wealth shall cause the same again to be published in manner afore- 
said, and such proposed amendment or amendments shall be sub- 
mitted to the people in such manner and at such time, at least three 
months after being so agreed to by the two Houses, as the Legis- 
lature shall pi-escribe, and if the people shall approve and ratify 
such amendment or amendments by a majority of the qualified 
voters of this State voting thereon, such amendment or amendments 
shall become a part of the Constitution ; but no amendment or 
amendments shall be submitted to the people oftener than once in 
five years : Provided, That if more than one amendment be sub- 
mitted, they shall be submitted in such manner and form, that the 
people may vote for and against each amendment separately and 
distinctly.'' Cons, of Pennsylvania. 

" The Genei'al Assembly, whenever two-thirds of each House 
shall deem it necessary, may, with the approbation of the Grovernor, 
propose amendments to this Constitution, and at least, three, and 
not more than six months before the next general election of Re- 
presentatives, duly publish them in print for the consideration of 
the people ; and if three-fourths of each branch of the Legisla- 
ture shall, after such an election, and before another, ratify the 
said amendments, they shall be valid to all intents and purposes, 
as parts of this Constitution." Cons, of Delaware. 

' ' That this form of government, and the declaration of rights, 
and no part thereof, shall be altered, changed or abolished, unless 
a bill so to alter, change or abolish the same, shall pass the General 
Assembly, and be published at least three months before a new 
election, and shall be confirmed by the General Assembly, after a 
new election of delegates, in the first session after such new elec- 
tion. " Cons, of Maryland. 

' ' The General Assembly may at any time propose such amend- 
ments to the Constitution as two-thirds of each House shall deem 
expedient, which shall be published in all the newspapers published 
in the State, three several times, at least twelve months before the 
next general election ; and if at the first session of the General 
Assembly after such general election, two-thirds of each House 
shall, by yeas and nays, ratify such proposed amendments, they shall 
be valid to all intents and purposes, as parts of this Constitution : 
Provided, that such proposed amendments shall be read on three 
several days, in each House, as well when the same are proposed, 
as when they are finally ratified. " Cons, of Missouri. 



CHAPTER V. 

OF THE GOVERNORS AND EXECUTIVE DEPARTMENTS OF THE 
SEVERAL STATES. 

1. In each of the several States, its Constitution provides that 
there shall be a chief executive department of government, distinct 
and separate from the others, and having special and peculiar 
powers. 

2. The executive department of a government is that which 
has the power of carrying the laws into effect ; as contra-distin- 
guished from the other departments which either enact the laws, 
or declare their meaning and application in the administration 
of justice. The existence of such a department in each State, 
with certain relations to the general government, is recognized in 
the federal Constitution, (a) 

3. In each State, generally, the supreme executive power of 
its government is vested in a Governor of the State. He is called 
the Executive, or Chief Magistrate of the State. 

The language of a State Constitution, in providing for the 
organization of this department, is, generally : ' ' The supreme 
executive power of the State shall be vested in a Governor ;" or, 
' ' The executive authority of the State shall be vested in a 
Governor;" or, "The supreme executive authority of the Com- 
monwealth shall be vested in a chief magistrate who shall be 
styled the Governor of the Commonwealth." In one State the 
language of its Constitution is, " There shall be a supreme execu- 
tive magistrate, who shall be styled the Governor of the Common- 
wealth ; and whose title shall be ' His Excellency. ' "(6) 

The executive power of a government, in its primary exercise, 
is thus placed in the hands of one person, in order to secure 
promptness, certainty and energy in the execution of the law, 
under all circumstances and emergencies. 

4. In some States, it is constitutionally provided, that there 
shall be an executive council of the State, to be associated with 
the Governor, for advising him in the discharge of his duties, and 

(a) See Cons, of United States, Art. II, sect. Ill, 2 ; sect. II. 4 ; Art IV, 
sect. II, 2. 

(6) Cons, of Massachusetts of 1780. 
212 



'■'' y- STATE GOVERNORS, ETC. 273 

whsoe assent shall be necessary to the appointment of officers by 
him and to the transaction of the executive affairs of government ; 
as in Massachusetts, New Hampshire, Vermont, Maryland, Vir- 
ginia, North Carolina, New Jersey. 

In Massachusetts the Senators are also Counsellors, who, or 
any five of whom, form a council for advising the Gcfvernor, and 
with him constitute a council "for the ordering and directing of 
the affairs of the Commonwealth." And in New Jersey "any 
three of the council shall at all times be a privy council to advise 
the Governor in all cases where he may find it necessary to consult 
them. ' ' 

5. The executive department of a State government is, of 
course, possessed of only limited powers, as prescribed by the Con- 
stitution of the State. The same rules apply in regard to the 
construction of its constitutional powers as to the other departments 
of the government. 

6. The Governor may be considered to be the representativ*^ 
and official organ of the State, as a body politic, through whom, 
in the exercise of his delegated powers, it is to be addressed, 
applied to, and notified, and its communications, correspondence, 
intercourse, negotiations, contracts and affairs, are to be made 
and transacted, conformably with its Constitution and laws.((;) 

7. While the Governor of a State exercises his office, he is 
said, in common language, to administer its government, and his 
term to be his administration of it. Hence, also, he, and the 
other Heads of Departments in the State, during his term, are so 
called the State administration. 

Election of Governor. 

8. The Governors of the several States are generally elected 
by the people ; but in some States they are elected by the Legisla- 
tures respectively, as in Maryland, South Carolina, Georgia, New 
Jersey. The qualifications of electors or voters for State officers 
are the subject of notice in a subsequent part of this work. (6) 

Election of executive council. 

9. In New Hampshire and Vermont the members of the execu- 
tive council are elected by the people ; in Maryland, Virginia and 
North Carolina, by the Legislatures respectively, and in Massa- 
chusetts and New Jersey the legislative Counsellors, or Senators, 
elected by the people, or a certain number of these counsellors, 
constitute such a council ; their term of service being the same 
with that of the Governors respectively. 

(g) See Part I. chap. VIII, par. (i. 

(b) See, further on, chap. VII. head Elections, 



3T4 STATE GOVERNORS, ETC. [PART IL 

Term of office. 

10. The term of service of the Governors varies in the different 
States ; being fi-om one to four years. In some States, it is pro- 
vided by their Constitutions, that a person shall not be elected to 
the office for more than one terra, or a certain number of terms in 
succession. 

It is generally directed that the Grovemor shall continue to exer- 
cise the oflice, until another Governor shall be duly qualified ; as 
in case of the trial of a contested election for Governor being 
protracted beyond the prescribed time of inauguration. 

Oath of office. 

The State Constitutions generally require that all officers shall 
be sworn or affirmed to support the Constitution of the State and 
to discharge their duties with fidelity ; as they are to be bound by 
oath or affirmation to support the Constitution of the TTnited 
States. 

In Georgia, the State Constitution provides that the Governor 
shall take an oath or affirmation, that he ' ' will faithfully execute 
the office of Governor to the State of Georgia ; and will, to the 
best of his abilities, preserve, protect and defend the said State, 
and cause justice to be executed and mercy therein, according to. 
the Constitution and laws thereof." Art. 2, 5. 

Qualifications. 

11. The qualifications to be elected Governor of a State are 
generally, that a person should be of a certain age, generally 
thirty years, and should have been a citizen of the TJnited States 
and a resident of the State for a certain time. And generally no 
member of Congress, or person holding any office under the general 
or State government, can be Governor of a State. 

In some States the Constitutions provide that no person shall 
be elected Governor who is not seized and possessed of real estate 
of a certain value. 

• ' No person shall be eligible to the office of Governor, ' ' who 
does not possess five hundred acres of land in his own right, within 
this State, and other property to the amount of four thousand 
dollars, and whose estate shall not, on a reasonable estimation, be 
competent to the discharge of his debts, over and above that sum. " 
Cons, of Georgia. 

Compensation. 

12. What compensation do the Governors of the States re- 
ceive ? 

The Constitutions of the several States provide that they shall 



CH. v.] STATE GOVERNORS. 275 

receive a compensation, to be fixed by law, which shall not be 
increased or diminished during their terms of office. It is differ- 
ent in the several States ; being from one to four thousand dollars 
a year, and in some instances more. In Ohio, it is one thousand 
dollars a year, and in Pennsylvania three thousand dollars a year. 

Duties and powers in general. 

13. It is generally provided in the Constitution of a State, 
that the Governor thereof "shall see that the laws be faithfully 
executed ;" and that he shall have certain specific powers ; and he 
may be vested with powers by "law," or the Acts of Assembly, 
not inconsistent with the Constitution. 

The Governor ' ' shall transact all necessary business with the 
officers of government, civil and military. He shall expedite all 
such measures as may be resolved upon by the Legislature, and 
shall take care that the laws are faithftiUy executed." Gons. of 
Jfew York. 

The Governors of the several States possess no other powers 
than those conferred on them, by the Constitutions and laws 
respectively. 

14. The constitutional clause, " that the Governor shall take 
care that the laws be faithfully executed," does not, of itself, con- 
fer any powers not otherwise possessed by the Governor. His 
particular duties and powers, not specified in the Constitution of 
the State, are determined by Act of Assembly, the law of the 
State. 

Power and duty as to tlve Legislature. 

15. It is generally provided in a State Constitution that the 
Governor may convene the Legislature on extraordinary occasions ; 
and also, in case of the disagreement of the two Houses thereof as 
to the time of their adjournment, that he may adjoui'n them to such 
time as he shall see proper, not beyond a limited period, or beyond 
the time of their next annual meeting. 

In some States the provision is, "that he may, in cases of 
emergency, convene the Legislature at the seat of government, or 
at a different place, if that shall have become dangerous, since 
their last adjournment, from an enemy or from disease." Cons. 
i)f Mississippi, Louisiana, Indiana. 

" The Governor, with the advice of the Council, shall have full 
power and authority, in the recess of the general court, to pro- 
rogue the same, from time to time, not exceeding ninety days, in 
any one recess of said court ; and during the session of the said 
court, to adjourn or prorogue it to any time the two Houses may 
desire, and call it together sooner than the time to which it was 



276 STATE GOVERNORS. [PART II. 

adjourned or prorogued, if the welfare of the State should require 
the same. " Co7is. of Neiv Hampshire. 

The Governor shall have power "to convene the Legislature, 
on application of a majority of the members of the House of 
Delegates, or when, in his opinion, the interests of the Common- 
wealth shall require it." Cons, of Virginia. 

The subject of the convening and adjournment of the Legisla- 
ture of a State is embraced in the nest preceding chapter of this 
work. 

Power as to legislation. 

16. In general, it is provided by the Constitution of a State, 
that any bill passed by the Legislature shall be presented to the 
Governor, for his approval or disapproval of it ; giving him the 
power of a qualified negative upon it. It is not so, however, in 
all the States. 

The executive of a State has not the right of a negative upon 
elections by the Legislature, as in cases where the State Constitu- 
tion gives him a qualified negative upon the laws. 

In regard to this head the reader is referred to that part of this 
work which relates to the Legislatures of the States. 

Commimications to the Legislature. Messages. 

IT. It is generally provided in the Constitution of a State that 
the Governor shall, from time to time, communicate to the Legis- 
lature information respecting the operations and affairs of the 
government, and recommend such measures as he shall deem 
expedient. Such communications are made in writing and called 
Ms messages to the Legislature. 

Consulting power. 

18. As it is generally provided in the Constitution of a State, 
the Governor may require information in writing from the officers 
in the executive department, on any subject relating to the duties 
of their respective offices. 

Military povjer. 

19. In each State, in general, the Governor is declared, by 
the Constitution, to be the commander-in-chief of the army of the 
State, except when called into the service of the United States, (h) 

In some of the Constitutions it is added: "but he shall (or 
"need") not command personally in the field, unless he shall be 
■advised so to do by a resolution of the General Assembly. " Cons. 
of Indiana, Louisiana, Missouri, <&c. 

(h) See Part I. chap. III. head Militia, 



CIi. v.] STATE GOVERNORS. 211 

"He shall have power to embody the militia, when, in his 
opinion, the public safety may require it. " Co7is. of Virginia. 

"And when acting in the service of the United States, the 
General Assembly shall lix his rank. " Cons, of Alabama. 

" The Governor shall be general and commander-in-chief of all 
the militia, and admiral of the navy of the State. ' ' But when the 
Governor shall, with the consent of the Legislature, be out of the 
State, in time of war, at the head of a military force thereof, he 
shall still continue commander-in-chief of all the military force of 
the State." Cons, of New York. 

In some of the State Constitutions, it is provided that the 
Governor shall have full power to train, exercise and govern the 
militia and navy of the State, and to call out the inhabitants into 
actual military service against its enemies : Provided, that he shall 
not, by virtue of any power granted to him by the Constitution, or 
to be granted by the Legislature, transport or oblige to march out 
of the limits of the State any of its inhabitants, without their free 
and voluntary consent, or the consent of the General Court. Cons, 
of New Hampshire, MassachuseUs, Maine. 

There are laws in every State for the regulation of the militia, 
and providing in what manner it may be called into actual service 
by the Governor, in case of rebellion, insurrection, or invasion, or 
upon the requisition of the President of the United States. 

By the federal Constitution, ' ' No State, without the consent 
of Congress, shall keep troops or ships of war in time of peace." 
Cons, of the U. S., Art. I, sect. X. 2. 

To be conservators of the peace. 

20. In some of the States, it is provided by their Constitu- 
tions that the Governors shall be conservators of the peace through- 
out their States respectively. 

As such officers they have the powers of a judicial magistrate 
and executive officer, to suppress riots, to arrest or to order the 
arrest of criminals, to prevent breaches of the peace, and to do 
acts of the like nature. 

Power of appointment to office. 

21. In most of the States the power of appointment, as to 
those officers who are not elected by the people, is conferred by the 
Constitutions on the Governor, with the advice and consent of the 
State Senate ; in some States this is the case with respect to some 
of the most important offices, and as to the others the Governor has 
the sole power of appointment. In some States the Legislature 
appoints all officers not elected by the people, and the Governor 
is only authorized to fill vacancies in snch offices during the recess 



2T8 STATE GOVERNORS. [PART U. 

of the Legislature. Gfenerally, all officers are commissioned by the 
Governor. 

In some States, appointments to office are made by the Grovernor 
only, with the advice and consent of the executive or privy council. 
See, further on, chap. YII. 

Power to remove officers. 

22. Where a Governor of a State has the power of appointing- 
officers, who hold office at will, he can remove such officers at his 
pleasure. The power of appointment, in such cases, implies the 
power to remove, (c) 

The power of appointing, implies the power to remove an officer, 
in all cases except where the office is held during good behavior, 
or its duration for a certain time is specially declared by the law 
establishing it.(d) 

The Governor of a State may be authorized by statute. Act of 
Assembly, to appoint all officers whose appointment is not other- 
wise provided for in the Constitution. 

Poicer of pardon and reprieve, 

23. By the State Constitutions in general, the Governors are 
respectively vested with power to grant reprieves and pardons for 
offences, except in cases of impeachment. 

In some of the States this power is vested in the Governor and 
Council ; as in "Vermont, New Hampshire, Massachusetts, Maine. 

In some of the States the Governor is required, by the Consti- 
tution, to set forth fully in writing, the grounds of all reprieves, 
pardons and remissions of fines, to be duly i-egistered, and laid 
before the Legislature ; as in Delaware. 

In Connecticut the Governor has power to grant reprieves to the 
end of the next session of the General Assembly, and no longer. 

In Vermont the Governor and Council cannot grant pardons in 
eases of murder and treason ; but may grant reprieves therein until 
the end of the next session of the Assembly. 

In some States, in cases of treason the Governor may, with the 
advice and consent of the Senate, grant reprieves and pardons ; 
and he may, in the recess of the Senate, respite the sentence until 
the end of the next session of the Legislature. Texas. 

In some of the States, it is provided that the Governor shall have 
power, under such rules as the Legislature may prescribe, to re- 
mit fines and forfeitures. 

Under the power to pardon offences, a Governor may remit the 
whole or part of the punishment of an offence ; or may grant a 
conditional pardon. 

(c) See Part the First, chap. viii. p. 94. 

("d) As to the Biilitia J see- Part the First, chap. iii. hea.d Militia. 



I 



CH. v.] STATE GOVERNOPIS 279 

Under a general power to grant pardons, a Governor of a State 
may grant a pardon for an ofiFence, before the trial or conviction 
of the offender. In the States of Ohio, Maine, Massachusetts, 
Connecticut, and New Hampshire, however, the Constitutions ex- 
pressly confine its exercise to cases in which there have been such 
convictions. 

A reprieve is the temporary suspension of the sentence of death 
on a criminal. 

' ' The Governor shall have the power to grant reprieves and par- 
dons after conviction, for all offences except treason and cases of 
impeachment, upon such conditions, and with such restrictions and 
limitations as he may think proper, subject to such regulations as 
may be provided by law relative to the manner of applying for 
pardons." Cons, of California, Wisconsin. 

Power in case of vacancies in Congress. 

24. The federal Constitution recognizes the existence of an ex- 
ecutive department in each State, and requires the performance by 
it of certain duties in reference to the general government and the 
Union. 

' ' When vacancies happen in the representation from any State, 
the executive authority thereof shall issue writs of election to fill 
such vacancies." Cons, of U. S. Art. I, Sec. II, 4. 

25. In reference to the Senate of the United States, it is pro- 
vided ; ' ' And if vacancies happen by resignation, or otherwise, 
during the recess of the Legislature of any State, the executive 
thereof may make temporary appointments, until the next meeting 
of the Legislature, which shall then fill such vacancies. " Cons, of 
U. S. Art. I, Sec. Ill, 2. 

Fugitives from justice. 

26. "A person charged in any State with treason, felony, or 
other crime, who shall flee from justice, and be found in another 
State, shall, on demand of the executive authority of the State 
from which he fled, be delivered up, to be removed to the State 
having jurisdiction of the crime." Cons, of U. S. Art. IV, 
Sect. II, 2. 

There are observations in another part of this work, in regard 
to the construction of this clause of the federal Constitution, and 
to the practice under it. 

Impeachment and removal from office. 

21. The Governors of the several States are, by their Consti- 
tutions respectively, made liable to impeachment for treason, 
bribery, or other misdemeanor in office. It is generally directed 



280 STATE GOVERNORS. [PAKT II. 

that such impeachment shall be on the presentation of the House 
of Representatives of the State, to be tried by the Senate 
thereof, (j) 

Register of their acts and proceedings. 

28. A register of all the official acts and proceedings of the 
Governor of a State is generally required to be kept by the Secre- 
tary of State. 

Authentication of their acts. 

29. In general, all their official acts and proceedings are 
required, either by the Constitution or laws of the States respec- 
tively, to be authenticated by the great or lesser seal of the State, 
with the attestation of the Secretary of State. 

Power of the Legislature as to the acts of the Governor. 

30. It is generally a constitutional provision in a State that 
the Secretary of State shall keep a register of the official acts and 
proceedings of the Governor, and lay the same, vnth. all papers 
relative thereto, before either House of the Legislature, whenever 
required so to do. 

Secretaries of the Governors. 

31. In some of the States, it is constitutionally provided that 
the "Governor shall have power to appoint his own Secretary." 

Vacancy in the office. 

32. The Constitution of each State provides in what manner a 
vacancy in the office of Governor, by refusal to take the oath of 
office, resignation, removal from office, or death, shall be supplied. 
Generally, it is directed that, in case of such vacancy, the Presi- 
dent of the Senate, or in case of his inability, the Speaker of the 
House of Representatives of the State, shall exercise the office, 
either for the unexpired term of the late Governor, or, under 
certain circumstances, until another Governor shall be duly 
qualified. In some States it is provided that in case such vacancy 
occurs a certain length of time before the end of the term of the 
office, there shall be another Governor elected at the next general 
election, or on certain previous notice. 

In some States, in cases of such vacancy, the office so devolves 
upon the Lieutenant-Governor. 

In some instances, it is declared that when the Governor is 
impeached, or absent from the State, there shall be a vacancy, to 

(j) As to impeaclimeuts, See Part I. chap. III. 



CH. v.] STATE GOVERNORS. 281 

be filled as above mentioned, until the Governor shall return or be 
acquitted, or another Grovernor be duly qualified. 

In some States, on "the disability of the Governor," the office 
shall be exercised as in cases of vacancies from the above mentioned 
causes, until the disability be removed, or another Governor be 
duly qualified. 

Lieutenant- Governor. 

33. In some of the States there is a Lieutenant-Governor ; 
generally required to possess the same qualifications, and elected 
at the same time, in the same manner, and for the same term, as 
the Governor. In Massachusetts he has, by the Constitution, the 
title of "His Honor." 

In those States in which there are an executive Council and 
Lieutenant-Governor, he is a member of it, and presides in it, 
when the Governor is absent. 

In some States, he is, by virtue of his office. President of the 
Senate of the State ; having, however, only a casting vote, in case 
of an equal division therein. His office, in this respect, is referred 
to, in the chapter which treats of the Legislatures of the States. 

In case of a vacancy in the office of the Governor, by removal 
from office, resignation, absence from the State, death, or other- 
wise, the office generally devolves upon the Lieutenant-Governor. 

In Yirginia, the senior Counsellor is the Lieutenant-Governor. 

Executive departments of a State government. 

34. There are in each State several departments of the govern- 
ment, connected with its chief or supreme executive department, 
as provided by its Constitution. They are under the charge of 
distinct officers, as, generally, a Secretary of State, State Trea- 
surer, State Auditor or Comptroller, Secretary of the Land Office, 
and Attorney General of the State. They are sometimes called 
Heads of Departments, in the State government ; and are said, in 
common language, to form the administration of the State for a 
particular term. The Attorney General is properly a judicial 
officer, appertaining to the judiciary, though having, for some 
purposes, a connection with the executive department. 

In several States some of them are appointed by the Governor ; 
but generally they are elected by the Legislatures, though in some 
States by the people. Their term of office is generally the same 
with that of the Governor ; though in many instances the State 
Treasurer is elected annually. 

Though much of the business in the office of the Secretary of 
State is transacted under the instructions of the Governors, those 
officers are not subordinate to the Governors, as being subject to 

24* 



282 STATE GOVEBNOES. [PART H. 

his control and direction, but exercise their powers independently, 
under the Constitution and laws. (^) 

In most of the States there is a Superintendent of Common 
Schools, being at the head of the department of Common Schools. 

(,1c) See, further on, chap. VII, head State and State officers. 



CHAPTER VI. 

OF THE COURTS AND JUDICIARY OF THE SEVERAL STATES. 

1. In the form of government of each State, as established by 
its Constitution, the judiciary is made a chief and essential part of 
its system. 

2. A judicial department of the government is thus erected, as 
distinct and separate from its other branches ; such an organiza- 
tion being regarded as an object of great interest and care in the 
scheme of republican institutions. 

3. The judiciary is a co-ordinate branch of the government, 
with the legislative and executive departments thereof, and inde- 
pendent of them ; deriving, in like manner with them, itsauthority, 
through the Constitution, from the people, and being equally the 
representatives of the people, (a) 

4. To this department it belongs to interpret, apply and enforce 
the Constitution and laws, by its judgments and orders, in refer- 
ence to particular cases and individuals, in the regular course of 
the administration of justice, (b) The independence of its posi- 
tion, in relation to the other departments, is the more important in 
a free constitutional government, as it may be thus required to de- 
cide upon the validity of their acts and proceedings, in respect to 
the Constitution. 

5. The Constitution of each State provides that its judicial 
powers shall be vested in certain courts, described in the Constitu- 
tion, and in such other courts as shall be established by law. These 
courts of justice constitute the judicial department, the judiciary, 
of the State ; the judges being judicial officers of the State. 

6. The courts of a State, are courts of record, or courts not of 
record ; the former being those which have a seal and keep records 
of their acts and proceedings. 

t. They are also distinguished as courts of civil jurisdiction, 
and those of cr^m^/^aZ jurisdiction ; and as courts of original and 
those of appellate jurisdiction, (e) 

(a) See Part I, cliap. I ; and Part II, chap, I. 
(h) See Part I, chap. IX, title Judiciary. 
Cc)See explanation of terms. Part I, chap. IX. 

283 



284 STATE JUDICIAUIES. [PAET H. 

9. In some of the States there are courts which differ from the 
other courts in possessing esclusive chancery, or equity, jurisdic- 
tion. In most of the States the jurisdiction of the courts is, in 
this respect, of a mixed kind, consisting of both common law and 
equity jurisdiction. The nature of chancery and equity law and 
jurisdiction has been already noticed, {d) 

10. Generally, the ordinary courts for each State are; for the 
whole State, an appellate court, called the Supreme Court, or 
Court of Errors and Appeals ; and for every county, a court of 
original civil jurisdiction called a Court of Common Pleas, and also 
Courts of Quarter Sessions of the Peace and of Oyer and Termi- 
ner and Gaol Delivery, of original criminal jurisdiction, an 
Orphans' Court, and Register's Court; which courts are held in 
some States by the same judges, and in others by different judges ; 
and in a few of the States there is in every county a court of chan- 
cery or equity, held by a judge called a chancellor. There ex- 
ists in some States a court in every county held by a single judge 
of the Supreme Court, called a Circuit Court, and having original 
jurisdiction, as to the higher crimes and offences, and in civil cases 
of importance where the sum or value in dispute exceeds a certain 
amount ; an appeal being allowed from this court to the Supreme 
Court in hank : and where there is not such a court, there is, in 
some instances, a District Court in every county, held by a judge 
appointed for the purpose, with similar jurisdiction. 

In some States there is a Court of Probate for each county ; 
before which wills and testaments are proved, and questions of bu- 
siness relating to them adjudicated and transacted, (e) 

Mayor's or Recorder's Courts are held only in cities. These 
are courts of record. There are likewise one or more justices of 
the peace (e) in every township, borough, or district of each county, 
and aldermen in the cities. 

11. The appellate courts of a State, generally, are composed 
of tlu'ee or more judges ; who hold a session of the Court once a 
year for the State ; in some of the States they hold sessions of the 
Court in several districts of the State, assigned for the purpose. 

12. For the ptu'pose of organizing the Courts of Common 
Pleas or ordinary county courts, generally, a State is divided into 
judicial districts or circuits, consisting of several counties ; for each 
of which districts or circuits a President Judge is appointed, who 
holds the court in every county therein, together with two or more 
Associate Judges appointed therefor. Such courts are held at 

(d) See Part II, chap. II, par. 

(e) See farther on, in this chapter, the head Justices of the Peace and 
^ldermeii= 



en. VI.] STATE JUDICIAUIE?, 2S'^ 

several stated periods during the year, and as oociisioii may require, 

13. Have tlie State courts jurisdiction under tlie laws of the 
United States ? 

In some cases, there is jurisdiction conferred by Aeis of Con- 
gress on the State courts and magistrates. It has, however, been 
adjudged that they are not obliged to exercise sncii jurisdiction - 
though they may exercise it, if authorized by the laws of the State. 

14. May the State courts decide that an Act of Congress or 
law of a State is unconstitutional and void ? 

They may, in the regular course of the administration of justice, 
regard an Act of Congress, or any measure or proceeding by it or 
by any department of the general government, as void and nuga- 
tory, as being contrary to the fedei'al Constitution ; or a law of the 
State, or any act of its government, as void, as repugTiant to either 
the federal or State Constitution. 

15. There may be an appeal in certain cases to the Supreme 
Court of the United States from a State court. 

Under the federal Constitution, and the judiciary Acts of Con- 
gress, there may be an appeal from the final decision of the highest 
court of law or equity in a State to the Supreme Court of the 
United States, in cases where such decision has been against the 
validity of an Act of Congress, treaty, or any commission or au- 
thority derived from the federal government, or in favor of the 
validity of any State Constitution, law or authority, where its val- 
idity has been drawn in question on the g^'ound of repugnancy to 
the federal Constitution, (f) 

16 There are some cases in which the State courts have juris- 
diction concui'rently with the United States courts, (g) 

17. There are courts of the United States having jurisdiction, 
and some of which hold their sessions, within the States severally. 

The Supreme Court of the United States exercises its jurisdic- 
tion within all the States ; and there is held within each State a 
Circuit Court, and District Court of the United States, having 
jurisdiction therein. Their jurisdiction is altogether under the 
laws of the United States and the federal Constitution. They 
are entirely distinct, as to organization and jurisdiction, from the 
State courts ; according to the difTerence between the govern- 
ment of the Union, and any State government. In some cases, by 
Acts of Congress, the State courts have jurisdiction concurrently 
with the Circuit and District Courts of the United States, (h) 

Constitutional principles in the administration of justice. 

18. In most of the States there are Constitutional provisions 

(/) As to the federal Sup. Court, See Part I, chap. IX. 
(g) See Part I, chap. IX. 
(h) See Part I, chap. IX, par. 



2^-G ETATE JCIICIAUIP.S. [PART 11. 

Vvhlcli recoguize certain prlueiples and rights relative to the ad- 
ttiinistration of justice, and declare them to be peremptory and ab- 
solute. The right of trial by jury, the privilege of the writ ofHahea?; 
corpus^ freedom from unlawful arrest or seizure, the illegality of 
warrants issued without oath, the right of a party or an accused 
person to be heard in court by himself or counsel, and not to be 
compelled to accuse himself, the prohibition of cruel, excessive and 
unusual fines and punishments, the right of being discharged on 
bail, and the like, have been thus permanently secured. These 
provisions have been particularly noticed, under appropriate heads, 
in another part of this work, (i) 

' ' Judges shall not charge with respect to matter of fact, but shall 
state the testimony and declare the law. " Cons, of California. 

Judges of the courts. 

18. In most of the States, the mode of the appointment of 
the judges is constitutionally determined ; in some it is so declared 
that they shall be appointed as may be prescribed by law. 

It is generally provided in the Constitution of a State that the 
judges of the several courts shall be nominated, and, by and with 
the consent of the Senate, appointed by the Governor of the State. 
In some States they are elected by the Legislatures ; and in others, 
some of the judges are elected by the people. 

It is generally required, in the State Constitution or laws, that 
the persons appointed or elected judges shall "be learned in the 
law," except that, in some cases, in the Courts of Quarter Sessions 
of the Peace and other county courts, there are associated with the 
President of the court justices of the peace, and other persons 
called Associate Judges, who are not required to be such, in a tech- 
nical sense. 

In some States persons are disqualified to be appointed judges, 
or to continue in ofiice as such, by advanced age ; in most cases, 
seventy years. 

In some States a person is not eligible, or cannot be appointed 
to the office of a judge of a court, who has not at the time attained 
a certain age. {j) See Part II, chap. III, TV. 

Term of office, 

19. In some of the States, the judges of the courts hold their 
offices, as declared by tlieir Constitutions respectively, for life, 
during good behavior ; and in other States, for a term of years. 

In the original States, by their first Constitutions, judges of 
fc-ourts were appointed for life, during good behavior ; but, o ' late 

(i) See Part II, chap. Ill, IV. 
(j) Cons, of Missisippi. 



CH. VI.] STATE JUDICIARIES. 287 

years, in those whose Constitutions have been amended, and in 
States newly formed, they hold their offices for a limited term of 
years. 

In some of the States, it is provided that no judge shall con- 
tinue in office, after a certain period of his age ; generally seventy 
years. 

Incompatibility of office. 

20. It is generally provided in the State Constitutions, that the 
judges shall not hold any other office of profit under the State. 

And it is, also, so provided, that no member of Congress, or 
officer of the United States, shall at the same time hold any office 
in the State, (i) 

In some States, the Constitutional provision is, that no judge of 
a court shall hold any other office or public trust. 

' ' They shall hold no other office of profit, nor receive any fees 
or perquisites, in addition to their salaries, for business done by 
them." Cons, of Delaware. 

Restrictions as to business. 

" No judge of any court, or justice of the peace, shall act as an 
attorney, or be of counsel, to any party, or originate any civil suit, 
in matters which shall come before him as judge, or justice of the 
peace." Cons, of New Hampshire. 

Salaries. 

21. The several State Constitutions generally provide that the 
judges shall receive, at stated periods, a compensation to be fixed by 
law, and paid by the State, which shall not be diminished during 
their continuance in office ; and that they shall not receive any fees 
or perquisites of office. 

" Each of the judges — shall receive a salary, of not less than 
one thousand five hundred dollars," Cons, of Wisconsin. 

In some States the salaries of judges cannot be increased during 
their term of office. 

"The Legislature shall impose a tax on all civil suits — which 
shall be a fund toward the payment of the salaries of judges." 
Cons, of Wiiiconsi7i. 

Impeachment. 

22. The judges of the several States are liable to impeachment. 
It is generally provided by the Constitutions of the several States 

that they may be impeached for misbehavior in office. (/) 

(ij See, farther, chap. VII, head Officers in general. 
(j) See Part II, chap. IV, par. 



288 STATE JUDICIARIES. [PAET XL 

Removal from office. 

23. How may the judges, in some of the States, be removed 
from office on the address of the Legislatures ? 

In some of the States, it is provided by the Constitutions thereof, 
that the judges, for any reasonable cause vphich shall not be suffi- 
cient ground of impeachment, may be removed from office on the 
address of two-thirds of both branches of the Legislature. 

Are the judges liable to be removed from office on conviction, by 
indictment, of misbehavior in office, or of any infamous crime ? 

It is generally so provided in the Constitutions of the several 
States. (Ic) 

"The judges of the several courts of this State, for wilful neg- 
lect of duty or other reasonable cause, shall be removed by the 
Governor on the address of two-thirds of both Houses of the 
Legislature ; the address to be by joint vote of both Houses. The 
cause or causes for which such removal shall be required, shall be 
stated at length in such address, and on the journals of each House. 
The judge so intended to be removed shall be notified and admitted 
to a hearing in his own defence, before any vote for such address 
shall pass ; the vote on such address shall be taken by yeas and 
nays, and entered on the journals of each House- ' ' (Jons. of Miss- 
issippi. 

In some States, the cause for such removal, on the address of 
the Legislature, must be wilful neglect or other reasonable cause, 
which shall not be sufficient ground of impeachment. 

"All judicial officers, duly appointed, commissioned and sworn, 
shall hold their offices during good behavior ; except such concern- 
ing whom there is different provision made in this Constitution. 
Provided nevertheless, the Grovernor, with consent of the Council, 
may remove them upon the address of both Houses of the Legis- 
lature. " Co7is of Massachusetts, New Hampshire. 

" Judges may be removed from office by a concurrent vote of 
both Houses of the General Assembly ; but two-thirds of the men- 
bers present must concur in such vote, and the cause of the remo- 
val shall be entered on the journal of each. The judge against 
whom the Legislature maybe about to proceed, shall receive notice 
thereof, accompanied with the copy of the causes alleged for his 
removal, at least twenty days before the day on which either House 
of the General Assembly shall act thereon." Cons, of Virginia. 
"No law abolishing any court shall be construed to deprive a 
judge thereof of his office, unless two-thirds of the members of each 
House present, concur in the passing thereof. ' ' Cons, of Virgiaia. 

(k) See, further on Chap. VII., par 54. 



CH. VI.] STATE JUDICARIES. 289 

Duty as to the Legislature, &c. 

24. The Justices of the Supreme Judicial Court, ' ' shall be 
obliged to give their opinion upon important questions of law, and 
upon solemn occasions, when required by the Governor, Council, 
Senate, or House of Representatives." Cons, of Maine. 

" Each branch of the Legislature, as well as the Governor and 
Council, shall have authority to require the opinions of the Justices 
of the Superior Court upon important questions of law and upon 
soleojn occasions." Cons, of New Hampshire, Massachusetts. 

Opinions of judges. . 

25. The judges of all the courts in this State shall, as often as 
it may be possible so to do, in every definite judgment, refer to the 
particular law in virtue of which such judgment is founded. '' Cons, 
of Indiana. 

In some States it is provided by law, that the judges, " learned 
in the law, ' ' shall, when requested by a party interested, file in 
writing the reasons for their opinions, on decisions or judgments 
made by them. 

' ' Judges shall not charge juries as to matters of fact, but may 
state the testimony and declare the law." Cons, of California. 

Justices of the peace. 

25. Justices of the peace are officers, one or more in every 
township, whose general jurisdiction is that of conservators of the 
peace, having authority to receive information and complaints of 
criminal offences, and to cause the offenders to be arrested and 
committed for trial before the proper court, and in bailable cases 
to admit prisoners and others to bail. In some States they have 
power to try and punish for offences, of the lesser kind, as 
assault and battery, and the like. In some States, also, they have 
conferred on them, by Act of Assembly, jurisdiction to try and 
determine civil suits, where the sum or value in controversy does 
not exceed a limited amount. (Z) 

In some States, they are appointed by the Governors, with the 
consent of the Legislature ; in other States, by the Legislature ; 
and in others, they are elected by the people ; and in general, for 
a term of years. 

They are paid stated fees or perquisites of office, as costs of 
prosecution or suit, or by the persons for whom the services are 
performed. 

Aldermen. 

26. Aldermen are judicial magistrates in cities ; having juris- 
diction and powers similar to justices of the peace ; and especially 

(I) See head Justices of the Peace, further on, chap. VII. 
25 



290 STATE JUDICIARIES, [PAET 11. 

of prosecutions and suits for violations of the oidinances and by- 
laws of the cities, and of proceedings under them. They are 
generally appointed by the Governor of the State, or elected by 
the people, for a term of years. 

Prothonotaries, and clerks of the courts. 

27. The officers of the State courts are, usually, prothonota- 
ries or clerks, masters in chancery, attorneys at law, sheriffs and 
constables, bailiffs or tipstaves. 

There is generally a prothonotary or clerk for each court. In 
some of the States the same person is prothonotary or clerk of all 
the courts in a county. 

His regular duties are, to keep a record of the judicial proceed- 
ings ; to keep the seal of the court ; to issue all writs and process 
of the court, file and preserve all papers and documents relative to 
the business thereof, and to give certified copies of the same, under 
the seal of the court, when duly required. 

He is appointed in different modes, in the several States ; by 
the Governor, the election of the people, or the appointment of 
the particular court. 

His compensation is derived, generally, altogether from pre- 
scribed fees and perquisites of office. 

Attorneys at law. 

28. Attorneys at law are persons learned in the law, admitted 
by the courts, under the rules thereof, to institute suits, manage 
causes and conduct proceedings, for others having business therein. 
They are officers of the courts. They are liable to be struck off 
the roll of attorneys, or otherwise punished, by the courts for mis- 
behavior in office, (m) 

The Attorney General is the legal adviser and attorney at law 
of the government, and has the superintendence of all the criminal 
prosecutions in the State. The prosecuting attorneys are either 
the deputies of the Attorney General, appointed by him at his 
pleasure for the several courts, or elected by the people, who 
manage and conduct on the part of the State all criminal cases 
and proceedings in the courts of justice. 

Sheriffs and coroners. 

29. The sheriff is the executive officer of the courts ; generally, 
elected by the people, for a term of years, in every county. It is 
his duty to serve and execute all process, writs, orders, judgments, 
decrees and sentences of the courts in his county. He may ap- 
point deputies, and remove them, at pleasure. He is by virtue of 
his office conservator of the peace, and authorized to prevent 
disturbances of the peace, to suppress riots, affrays and unlawful 

'vCi Sec liesui Attomevs at law. Part I, chap. IX, and further on, cli. VIL 



C!H. VI.] STATE JUDICIARIES. 291 

assemblies, and to arrest criminals, and for this purpose lie may 
require the assistance of the citizens, and, if necessary, summon 
the posse coviitatus, or power of the county, to aid him. There 
are often various duties specially required of him, as a county 
officer, by Act of Assembly. His compensation is from fees and 
perquisites of office, fixed by law. The courts are, also, authorized 
to appoint constables or tipstaves to attend them at th^ir sessions 
as ministerial officers, (n) The office of a coroner is the subject 
of notice, further on, in chapter VII. 

Vonstahles. 

30. What officers are constables ? 

They are civil, executive or ministerial officers, in every township - 
or parish of a county, or ward of a city. They are elected by the 
people of the township or parish, or ward of a city for the term of 
one year. Their regular duty is to serve and execute all warrants, 
process, writs, orders and judgments of justices of the peace, and 
aldermen. They are by virtue of their office conservators of the 
peace, and are authorized to prevent disturbances of the peace, 
suppress riots, and arrest criminals, on their own view, or on the 
warrants of the civil magistrates. There are, also, various duties 
imposed on them, by special statutes, relative to their toAvuships or 
wards. They are compensated by prescribed fees and perquisites, 
and allowances for particular services. The courts are generally 
authorized to appoint a certain number of constables to attend 
their sessions, to preserve order therein, and perform other minis- 
terial services, (n) 

TribuTials of conciliation. 

31. "Tribunals for conciliation may be established, with such 
powers and duties as may be prescribed by law ; but such tribunals 
«hall have no power to render judgment to be obligatory on the 
parties, except they voluntarily submit their matters in difference, 
and agree to abide the judgment, or assent thereto in presence af 
such tribunal, in such cases as shall be prescribed by law. " Cons, 
of California, Wisconsin. 

Publication of judicial decisions. 

32. " All laws and judicial decisions shall be free for publica- 
tion by any person." Cons, of California. 

Law and facts. 

33. "Judges shall not charge juries with respect to matters of 
fact, but may state the testimony and declare the law. ' ' Cons. 
Qf California. 

(n) See tkese heads, further on, in chap. VII» 



• CHAPTER TIL 

01" A STATE AND STATE OITICEES ; AKD COUNTIES, TOWNSHIPS^ 
CITIES AND BOROUGHS, AND THE OmCERS THEEEOF. 

1. Each State as an organized government is a body politic. 
It is considered in la^ as a public municipal body, in the nature of 
a cor[)oration. (a) 

It has its appropriate title or name, generally established by its 
Constitution, in which its correspondence, business and affairs are 
transacted 5 and its seal, by which its acts and proceedings are 
authenticated. 

It may sue at law, and in certain cases, under the Constitution of 
the Union, it may be sued in the federal courts, and, when it is so 
provided by the laws of the State, in its own courts. A State can- 
not be sued by its own citizens, or by those of another State, or 
of a foreign country, except as provided by its own laws, {b) It 
is a principle of law, that a nation, state, or government, cannot 
be sued at law, except with its own consent. In some instances, 
it is provided by the Constitution of a State "that suits may be 
brought against it in such manner as shall be directed by law." (c) 

In the Constitutions of some of the States it is expressed, that 
the people of the particular territory thereby ' ' formed themselves 
into a free, sovereign and independent body politic, or State, by 
the name of the Commonwealth," or State, as specified, (d) 

State Seal 

2. G-enerally, in the Constitution of a State it is provided that 
there shall be a State seal, to be kept in the office of the Secretary 
of State, for the authentication of commissions, and other public 
acts and documents, (e) In some cases, there are the " Great 

(a) See tiieliead " Corporations," Part II, etap. 11. 

(b) See Part I, chap. IX, title " Judiciary of the U. S,'* 

(c) See Part II, chap. IV. 

(d) See Cons, of Massachusetts, New Hampshire, 

(e) See Part 11, chap. V. 

a92 



•CH. Vn.] A STATE AITO STATE OFFICERS. 293 

Seal," and " Lesser Seal" of a State, to be applied to public 
documents of a greater or less importance respectively. 

Prosecutions at law. 

3. The Constitution of each State declares that all prosecu- 
tions at law shall be carried on in the name and by the authority 
of the State, and conclude ' ' against the peace and dignity of the 
same." Prosecutions, in this sense, are charges, informations, 
proceedings and indictments, at law, for crimes and misdemeanors. 
All crimes are oifences against the State. 

In monarchical governments prosecutions and process are in the 
name of the King or supreme ruler. 

Process. 

4. It is constitutionally required in the States that the style of 
all process shall be respectively " The State," or "The Common- 
wealth," of the particular name, or " The People" of the State. 
The process is considered as issued by the authority of the State,, 
and as contaiuing the command or requisition of the State. 

Citizens of a State. 

5. The citizens of a State are the free inhabitants therein^ 
born within the United States, or naturalized under the Acts of 
Congress. The nature of citizenship, and the method of natural- 
izing aliens, have been the subjects of notice in other parts of this 
work. (/) The reader is, also, referred to the head QualifieationE 
•of electors, in this chapter. 

Immigrants, and denizens.* 

In some of the States, the rights and privileges of immigrants 
settling in a State are declared by its Constitution. 

' ' The Legislature shall have power to admit to all the rights and 
privileges of free white citizens of this State all such persons of the 
Choctaw and Chikasaw tribes of Indians, as shall choose to remain 
in this State, upon such terms as the Legislature shall from time to 
time see proper." Cons, of Mississippi. 

"Every person of good character, who comes to settle in this 
State, having first taken an oath or affirmation of allegiance to the 
same, may purchase, and by other just means acquire, hold and 
transfer, land and other real estate ; and after one year's residence 
shall be deemed a free denizen thereof, and be entitled to all the 
rights of a natural born subject of this State, except that he shall 
uot be elected Governor, Lieutenant-Governor, Treasurer, Coun- 

(f) See Part J, chap. I^ UI, VIL *See Pari H, ciiap. UJ,, lY. 
25* 



29^ A STATE ANB STATE OFFICERS. [PART IT. 

seller, or Representatire in tlie Assembly, until after two year's re- 
sidence. ' ' Gons. of Vermont 

Oath of allegiance. 

6. In some States, the Constitutions require that members of 
the Legislature, all officers, citizens exercising the right of suifrage, 
and immigrants, in order to enjoy the privilege of citizens, shall 
take a prescribed "oath or affirmation of allegiance" to the State. 

"You do solemnly swear (or affirm) that you will be true and 
faithful to the State of Vermont, and that you will not, directly or 
indirectly, do any act or thing injurious to the Constitution or gov- 
ernment thereof, as established by convention. " Gons. of Ver- 
mont. 

"I, A. B. , do solemnly swear, that I will bear faith and allegi- 
ance to the State of I^ew Hampshire, and will support the Con- 
stitution thereof" Gons. of New Hampshire, Massachusetts, 

Census or enumeration of inhabitants. 

*l. By Acts of Congress,, in pursuance of the federal Constitu- 
tion, a census of all inhabitants is taken for all the States once in 
every ten years. Audit is required by the Constitution of a State^ 
and provided by its laws, that an enumeration of the taxable in- 
habitants in each county shall be made periodically, in most instan- 
ces, every five or seven years, by the township assessors, under the 
direction of the county commissioners, board of police, or other 
officers ; the returns thereof to be transmitted to the proper Stats 
department. 

OF OFFICEII& IN GENESAL. 

Appointment and election, 

8. Offices, in a State, are crea,ted either by its Constitution, or 
in pursuance thereof by law. They cannot be otherwise estab- 
lished. 

9. The Constitution of a State generally provides that there 
shall be certain State and county offices, and in what manner per- 
sons shall be appointed or elected thereto. Such offices, having 
their existence by the express provision of the Constitution, are 
called constitutional offices, in distinction from such as, not being 
named or specified in it, are formed by laws passed by the Legis- 
lature, by virtue of a discretionary power vested therein. 

10. In some instauces, the mode of appointment or election to 
eertain offices is not fixed by the Constitution, being left to be de- 
termined by law.. 



CH, VII.] A STATE AND STATE OmCERS. 295 

11. Offices not enumerated in the Constitution of a State, or 
new offices, may be established by laws enacted for the purpose, 
and the manner of appointment to them be thereby directed, either 
by virtue of powers expressly given to the Legislature by the Con- 
stitution, or under its general legislative authority, where that is 
not limited by express provision. 

Vacancies. 

12. It is generally provided by the Constitution of a State, 
that in case of vacancies in offices, whose incumbents were elected 
by the Legislature or the people, the Governor shall supply the 
same by appointments to continue until the next session of the 
Legislature, or until a special election by the people can be held, 
or until the next regular or general election respectively. 

Glassijicfition of officers. 

13. The officers of a State may be, generally, classed as State 
officers, county officers, and township, parish, or ward officers. In 
cities and boroughs, there are officers of those corporations respec- 
tively. 

They may, also, be considered, in relation to the nature of their 
duties, as either judicial or executive ; and as either civil or 
military. 

Prerequisite qualifications for office. 

14. In general, all citizens, resident in the State, may be 
appointed or elected to office. In some cases, a previous residence 
in the State, and in the particular county, township or parish, city, 
borough or ward, for a certain time, is requisite, unless the person 
has been absent on public business. 

In the Bills of Rights of some of the States it is declared, ' '■ that 
every inhabitant of the State, having the proper qualifications, 
has an equal right to be elected or appointed to office. " And it 
is, in general, thus declared that ' ' all elections shall be free and 
equal ; ' ' and that ' ' every inhabitant of the State, having the 
proper qualifications, has an equal right to elect, and be elected, 
into office.'' 

In some States a person cannot hold particular offices, unless he 
possesses real estate of a certain value ; or, in other cases, such 
real estate, or personal property worth a certain amount. 

In some States, it is provided by their Constitutions, that a 
person cannot be elected as a member of the Legislature, or 
appointed to certain offices, unless he has arrived at a prescribed 
age ; and, in some cases, that he cannot hold a judicial office after 
a certain period of his age. 

' ' No person who may hereafter be a collector or holder of public 



296 



A STATE AND STATE OFFICERS. 



[part n. 



moneys shall have a seat in either House of the Greneral Assembly, 
or be eligible to any office of profit or trust under this State, until 
he shall have accounted for, and paid into the treasury, all sums 
for which he may be accountable." Cons, of Alabama, Missouri, 

Duelists disqualified. ' 

15. Some of the State Constitutions provide that no person 
who has fought a duel, or been concerned therein, or in sending^ 
or accepting a challenge to fight a duel, shall be capable of hold- 
ing any office of trust. In some instances it is so provided that 
the Legislature of the State may enact laws to exclude such per- 
sons from office ; and in some cases, to require all officers, before 
they enter on the duties of their offices, to take an oath or affirma- 
tion, that they have not fought a duel, or been engaged therein by 
sending or accepting a challenge to fight a duel, and that they 
will not be so engaged during their continuance in office, (g) 

Religious sentiments. 

It is generally provided in the State Constitutions, that no 
person who acknowledges the being of God and a future state of 
rewards and punishments shall be disqualified on account of his 
religious sentiments to hold any office. 

16. In some States, the provision is, "that no religious test 
shall ever be required as a qualification to any office or public 
trust under the State." 

See the head "Religious liberty and right of conscience," in 
the third chapter of this part of the work. 

Bribery at elections. 

11. "Every person shall be disqualified from holding any office 
or place of honor or profit under the authority of this State, who 
shall be convicted of having given or offered any bribe to procure 
his election. " Cons, of Mississippi, Alabama. 

' ' Any elector who shall receive any gift or reward for his vote, 
in meat, drink, money or otherwise, shall suffer such punishment 
as the laws shall direct. And any person who shall directly or 
indirectly give, promise, or bestow any such reward, to be elected, 
shall thereby be rendered incapable, for six years, to serve in the 
office for which he was elected, and be subject to such further 
punishment as the Legislature shall direct." Cons, of Tennessee, 
Ohio. 

' ' Every person shall be disqualified from serving as Governor, 
Lieutenant-Governor, Senator or Representative, for the term for 
which he shall have been elected, who shall have been convicted 



(g) See Part II, chap. IV. 



en. Vn.J A STATE AND STATE OFFICERS. 29 If 

of having given or offered any bribe, threat or reward, to procure 
his election. " Cons, of Indiana, Louisiana. 

' ' Any person who shall give or offer any bribe to procure the 
election or appointment of any person, shall, on conviction thereof, 
be disqualified for an election or for any office of trust, honor or 
profit, under this State, for ten years, after such conviction," 
Cons, of Missouri. 

Disqualification from crime. 

18. "Laws shall be made to exclude from office and from 
suffrage those who shall hereafter be convicted of bribery, forgery, 
perjury, or other high crimes and misdemeanors. Cons, of Mis- 
sissippi, Louisiana. 

In some States the constitutional provision is, that the Legisla- 
ture shall have power to exclude such persons from office. 

In some States it is peremptorily declared by their Constitutions 
that no person, who may be convicted of felony, or other infamous 
crime, shall be eligible to any office or appointment of trust, honor 
or profit, in the State. 

Embezzlement. Fraud. 

"No person who shall be convicted of the embezzlement or 
defalcation of the public funds of this State, shall ever be eligible 
to any office of honor, or trust, or profit, under this State." Cons, 
of California. 

Clergymen disqualified. 

19. "No person, while he continues to exercise the functions of 
a bishop, priest, clergyman, or teacher of any religious denomina- 
tion, persuasion, society, or sect whatsoever, shall be eligible to 
either House of the General Assembly ; nor shall he be appointed 
to any office of profit, within the State, the office of justice of the 
peace excepted," C'o??s. of Missouri, Louisiana. 

No such person " shall be eligible to the General Assembly." 
Cons, of Kentucky, North Carolina, Georgia. 

And whereas, ministers of the Gospel are, by their profession, 
dedicated to the service of God, and the care of souls, and ought 
not to be diverted from the great duty of their functions ; therefore 
no minister of the Gospel, or public preacher, of any religious 
persuasion, while he continues in the exercise of his pastoral func- 
tions, shall be eligible to the office of Governor, Lieutenant- 
Governor, or a seat in the Senate or House of Representatives." 
Cons, of South Carolina, Florida, Tennessee. 

" Theraf >re, no minister of tho Gospel, or priest of any denomi- 
nation whaisocver shall, at anv time hereafter, under any pre ence 



298 A STATE AND STATE OFEICEBS. [PART IL 

or description whatsoeyer, be eligible to, or capable of liolding, 
any civil or military office or place witMn this State." 

Qualifications of electors. Right of suffrage. 

20. The qualifications of persons to vote at elections for officers, 
are determined by the State Constitutions. 

In general, every white male person, being a citizen of the 
United States, of the age of twenty-one years, who has resided 
within the State for one year preceding, who is an. actual resident 
of tie district or to^vnship in which the election is held, and who 
has paid a State or county tax, is entitled to vote at all elections. 
Absence fi'om the State on public business does not affect the right 
to vote. In some of the States a property qualification is required. 
In other States the right of suJrage is universal; neither the 
payment of taxes, nor the owning of property being necessary to 
the exercise of it. In some States "paupers and persons under 
guardianship" are excluded, and also "Indians not taxed," and 
idiots and insane persons. 

In the State of Delaware the requisite age is twenty-two years. 
In the States of Massachusetts, Maine, ISTew Hampshire, Vermont, 
and Rhode Island, free colored persons, otherwise c[ualified, are 
entitled to the right of suffi.'age ; the Constitutions of those States 
extending it to " all persons, ' ' without distinction in regard to 
color or race, who are qualified. 

It is so, likewise, with respect to Indians, except those not 
taxed, in these States and some others ; whilst in particular States 
it is constitutionally provided that the Legislatures may extend the 
right of suffrage to Indians. 

In some States it is so required that electors, before voting, 
shall take an oath or affirmation to support the Constitution of the 
State, or a prescribed oath or affirmation of allegiance, and also 
one in regard to their duties as electors. See Cons, of Massa- 
chusetts, Connecticut. 

"Every man," otherwise qualified, "who will take the follow- 
ing oath or affirmation, shall be entitled to all the privileges of a 
freeman of this State. 

"You do swear (or affirm) that whenever you give your vote of 
suffrage touching any matter that concerns the State of Yermont, 
you will do it as in your conscience you shall judge will most con- 
duce to the good of the same, as established by the Constitution, 
without fear or favor of any man." Cons, of Vermont. 

In Yirginia, every white male citizen, of the age of twenty-one 
years, owning a freehold or a leasehold estate in land, in posses- 
sion or remainder, of a certain value ; or who has been a house- 
keeper and head of a family, for a year preceding the election, 



OH. VII. J A STATE AND STATE OFFICERS. 299 

and who has paid within that time a State tax, is entitled to vote 
for members of the General Assembly. 

' ' The right of suffrage shall not be exercised by any person of 
unsonnd mind, or who shall be a pauper, or a no"n-commissioned 
officer, seaman, marine, in the service of the United States, or by 
any person convicted of any infamous offence." Co7is. of Vir- 
ginia. 

' ' No free negro, free mulatto, or free person of mixed blood, 
descended from negro ancestors to the fourth generation inclusive, 
(though one ancestor of each generation may have been a white 
person) shall vote for members of the Senate or House of Com- 
mons. " Cons, of Morth Carolina. 

In North Carolina, the possessing of a freehold of fifty acres of 
land within the district is necessary to entitle a pereon to vote for 
a member of the Senate, by the State Constitution. 

In several of the States it is constitutionally provided, that no 
soldier, marine or seaman, in the regular army or navy of the 
United States, shall be entitled to vote at any election in the State. 

" Provided, that no person shall be disqualified from voting at 
any election on account of color, who is now, by the laws of the 
state, a competent witness against a white man." Cons, of 
Tennessee: 

In reference to the residence within the State necessary to an 
elector; "but persons in the military, naval or marine service 
of the United States, or this State, shall not be considered as 
having obtained such established residence by being stationed in 
any garrison, barrack, or military place, in any town or planta- 
tion ; nor shall the residence of a student at any seminary of 
learning, entitle him to the right of suffrage in the town or planta- 
tion where such seminary is established. " Cons, of Maine. 

' ' Or having been enrolled in the militia, and having performed 
military duty therein, for the term of one year next preceding the time 
he shall offer himself for admission, or being liable thereto, shall have 
been by authority of law excused therefrom ;" is one of the quali- 
fications which severally entitle a person, who shall sustain a good 
moral character, and take the requisite oath, to be an elector. " 
Cons, of Connecticut. 

In some of the State Constitutions it is provided, ' ' that every 
elector shall be eligible to any office in this State, except in cases 
provided for in this Constitution." 

' ' For the purpose of voting, no person shall be deemed to have 
gained or lost a residence by reason of his presence or absence in 
the service of the United States ; nor while engaged in the navi- 
gation of the waters of this State, or of the United States, or of 
the high, seas ; nor while a student of any seminary of learning ; 



300 A STATE AND STATE OFFICEES. [PAKT H, 

nor while kept at any alms-house or other asylum of public ex- 
pense ; nor while confined in public prison. " Cons, of California. 

In Wisconsin, among the persons qualified to be electors are 
"white persons of foreign birth, who shall have declared their 
intention to become citizens, conformably to the laws of the United 
States on the subject of naturalization. " Cons, of Wisconsiii. 

In Wisconsin, the State Constitution provides, that the Legis- 
lature may at any time extend by law the right of suffrage to 
persons not being white persons, but that no such law shall be in 
force until the same shall be approved by the people by a majority 
of votes cast at a general election. 

In some of the States it is constitutionally provided, that no 
person who shall have been convicted of bribery, perjury, forgery, 
or other high crime or misdemeanor, shall have the right of 
suffrage. 

In some States there is a difference as to the qualification of 
property, between electors of Senators and those of Representa- 
tives in the "State Legislature. 

' ' Persons residing on lands ceded by this State to the United 
States, shall not be entitled to exercise the privilege of electors. ' ' 
Cons, of Bhode Island. 

By the Constitution, in North Carolina, "all freemen;" in 
Creorgia, " citizens and inhabitants ; " with the prescribed qualifi- 
cations as to age, residence, property and payment of taxes, are 
entitled to vote at the general elections. 

Privilege of electors. 

21. In most of the State Constitutions, it is provided that 
electors shall, in all cases, except in those of treason, felony or 
breach of the peace, be privileged from arrest, during their attend- 
ance on elections, and in going to and returning from the same. 

No elector shall be obliged to do duty in the militia on any day 
of election, except in time of war or public danger." Cons, of 
Maine, California. 

Elections. 

22. Elections are held at the time and places, and in the man- 
ner, prescribed by the Constitution and laws of the State- 
As to the time. In general, there is a general election held on 

one day every year throughout a State for Representatives in Con- 
gress, members of the State Legislature, and State and county 
officers, as may be necessary. Township, ward or borough officers 
are elected at a different time. Elections are generally made to 
commence and terminate on one day ; though in some States they 
may be continued during several days. 



CH. Vn.] A STATE AND STATE OFPICEBS. 301 

As to the places. In most of the States every township or 
parish, borough and ward is an election district ; and elections are 
held at such places therein as may be directed by law. 

As to the manner. In general, the electors vote personally by 
ballot, printed or written. In some States they vote orally, nam- 
ing the candidate voted for. 

The election is held at each district under the management of 
election officers, called judges and clerks, or the selectmen and town 
clerks of the townships. In some States the polls are kept open 
for only one day ; and in others until all the votes offered are given. 
There are two clerks at each place of election, each of whom keeps 
a poll-hook, or list of voters, in which the name of every voter is 
entered as he puts in his vote. The votes are given singly to one 
of the judges of the election, and by him then placed in a ballot 
box. The votes are not opened or inspected until after the polls 
are closed, when they are finally counted by the judges, and a state- 
ment thereof is made by the clerks. Certificates containing the 
names of the candidates, and the number of votes given them res- 
pectively, are then signed by the judges and clerks, and forwarded 
to the proper offices. These certificates are called election returns. 
Certificates of election are issued to the persons elected. 

In general, in all elections by the people the choice is determined 
by a plurality, not a majority of votes ; that is, the one of all the 
persons voted for who has the greatest number of votes is elected. 
In some of the States a majority of all the votes given is requi- 
site to the election of particular officers. 

The word " poll," in its literal signification, means a head. In 
common application it means a person, liable to be taxed, or voting 
at an election ; and polls mean the place of an election, or the per- 
sons who vote. 

' ' In all elections in this Commonwealth, to any office, or place 
of trust, honor or profit, the votes shall be given openly, or viva 
voce, and not by ballot. ' ' Cons, of Virginia. 

Similar constitutional provisions exist in Kentucky, Arkansas, 
Georgia. 

Oaths of office. 

23. All officers of a State are required, by the federal Consti- 
tution, and that of the State, to be bound by an oath or affirma- 
tion of office. 

' ' The Senators and Representatives before mentioned, and the 
members of the State Legislatures, and all executive and judicial 
officers, both of the United States and of the several States, shall be 
bound by oath or affirmation, to support this Constitution. " Cons, 
of U. S. Art. VI, sect. 3. 

26 



S02 A STATE A^^) STATE OFHCEaS. [PART n> 

"Members of the G-eneral Assembly, and all officers, executive 
and judicial, shall be bound by oath or affirmation to support the 
Constitution of this Commonwealth, and to perform the duties of 
their resjXictive offices vath fidelity." Cons, of Pa., Art. YIII. 

In some of the States the form of the oath or affiimation is pre- 
scribed by their Constitutions respectively. 

" The following oath shall be taken and subscribed by every per- 
son chosen or appointed to any office, civil or military, under the 
government of this Commonwealth, before he shall enter upon the 
duties of his office, to wit : 

" I, A. B. , do solemnly swear that I will bear true faith and allegi- 
ance to the Commonwealth of Makachusetts, and will support the 
Constitution thereof. So help me, God." Cons, of Massachu- 
setts. See Gojis. of Neio Hampshire. 

' ' You, , do solemnly swear (or affirm) that you will faith- 
fully execute the office of for the of ; and 

will therein do equal right and justice to all men, to the best of 
your judgment and abilities, according to law. " Cons, of Ver- 
mont. 

"I do solemnly swear that I will be faithful and true to the 
Commonwealth of Kentucky," &c. Cons, of Kentucky. 

In general, all county and township officers are, also, required 
by Act of Assembly to take and subscribe an oath or affirmation to 
support the Constitution of the United States and that of the Com- 
monwealth, and to perform the duties of their offiees with fidelity. 

Tenure and duration of office. 

24. Tenure of of&ce is, in this country, the condition on which 
an office is held. An office may be held at loill, the pleasure of 
the appointing power ; for life, during good behavior ; or for a 
term of years, during good behavior. 

The tenure and duration of offices are generally determined by 
the Constitutions of the several States, though in some instances 
it is left to the Legislatures to fix them by law. 

All offices are held on the condition of good behavior ; the 
incumbents being liable to be removed on conviction for misbeha- 
vior in office, or of any infamous crime. It is, in most instances, 
so declared in the Declarations of Rights of the several States. 

Commissions. 

25. It is generally provided that all commissions shall be in 
the name and by the authority of the particular State, sealed with 
the State seal, and signed by the Governor. They are, in most 
instances, issued out of the office of the Secretary of the State, by 
whom they are attested, and in which office they are registered. 



CH. Vn.] A STATE AND STATE OFFICERS. 303 

IncompatihUity of office. 

26. It is generally provided in the Constitution of a State, 
that no member of Congress from the State, or any person hold- 
ing any office or appointment of profit or trust under the United 
States, shall at the same time, exercise any office in the State. 

"No member of Congress, nor any person holding any office 
of trust or profit under the United States, (the office of postmaster 
excepted) or any other State of the Union, or under any foreign 
power, shall hold or exercise any office of trust or profit under the 
State." Cons, of Mississippi. See Cons, of Louisiana, Kentucky. 

In some of the States, by their Constitutions, members of the 
Legislature cannot hold certain offices ; and other offices are made 
incompatible. 

It is generally so directed that no member of the Legislature 
shall be appointed by the Governor to any office during the term 
for which he shall have been elected. 

In some of the State Constitutions it is provided that, ''No 
person shall hold more than one lucrative office at the same time, 
except as in this Constitution expressly permitted;" it being 
added, in some instances, " Provided, that no appointment in the 
militia, or the office of a justice of the peace, shall be considered 
as a lucrative office." 

" No person shall hold the office of Governor, and any other office 
or commission, civil or military, in this State, or under any State 
or the United States, or any other power, at one or the same 
time." Cons, of Alabama. 

' ' Nor shall any Senator or Representative be elected to any 
office or appointment by the Legislature, having any emoluments 
or compensation annexed thereto, during the time for which he 
shall be elected, (except justices of the inferior court, justices of 
the peace, and officers of the militia,) unless he shall decline 
accepting his seat, by notice to the executive within twenty days 
after he shall have been elected ; nor shall any member, after 
having taken his seat, be eligible to any of the aforesaid offices or 
appointments during the time for which he shall have been 
elected." Cons, of Georgia. 

Re-eligibility. / 

21. There are, generally, provisions in the State Constitutions 
limiting the re-eligibility of persons to certain offices. 

In most of the States the Governor is only eligible for a certain 
number of terms of the office in succession. And it is also, in 
many instances, so directed with respect to sheriffs, county treasu- 
rer, coroners, and other officers. 

A person is re-eligible, or may be re-appointed to an office, at 



304 A STATE AND STATE OFFICERS. [IPAET H. 

any time, unless it is expressly provided to the contrary by the 
State Constitution or law. 

Impeachment. 

28. It is provided in the State Constitutions, generally, that 
all civil officers are liable to impeachment for misdemeanor in 
office. The meaning comprehends, probably, any violation of 
official duty, whether criminal or not. This liability to impeach- 
ment is, in theory, one of the strong safeguards for official 
integrity. The impeachment is presented by the House of Repre- 
sentatives, and tried before the Senate, of the State ; the punish- 
ment to be removal from office, and disqualification to hold office 
in future. In most instances, the party impeached, whether 
acquitted or convicted, is nevertheless liable to indictment and 
punishment according to law in the courts of justice. 

In Vermont impeachments are presented by the General Assem- 
bly and heard and determined by the Legislative Council, ' ' taking 
to their assistance, for advice only, the judges of the Supreme 
Court." 

Eemoval from office. 

29. It is generally provided, either by the State Constitutions, 
or by law, that all civil officers may be removed on conviction of 
misbehavior in office, or of any infamous crime. 

It is provided in some of the States that particular officers, as 
the Governor, judge, and some other officers, may be removed on 
the address of two-thirds of the Legislature for any reasonable 
cause which shall not be sufficient ground of impeachment. This 
subject, as it respects the Governor of a State, has been noticed 
in a former chapter. (A) 

Persons holding offices at will may be removed therefrom by the 
appointing power, at the pleasure thereof, at any time. Such 
removal may be effected by the issuing of a commission to another 
person, by which the first appointment is superseded. 

Indictable for neglect and misbehavior. 

Wilful neglect of duty or misbehavior in office is a criminal 
offence, a misdemeanor, indictable and punishable at common law, 
or by statute. Public officers may be bo punished for bribery or 
other corruption in office. 

STATE AND STATE OFFICEES. 

30. The general civil affairs of a State are conducted, under 
the Constitution and laws, by State officers, and its internal gov- 

(h) See Part II, chap. V. 



CH. Vn.] A STATE AND STATE OFFICERS. 305 

ernmcnt and local matters are so carried on and administered b}' 
county and township, or parish or district officers, and by city and 
borough officers. 

State officers may be divided into civil and military ; and the 
civil into executive and judicial. 

31. The Governor and all the other executive officers form the 
general executive department of the State. The Governor and 
the heads of departments constitute what is commonly called the 
" State administration." 

State officers are compensated for their services, generally by 
annual salaries, paid out of the treasury of the State. 

Taxation and revenue. 

32. The expenses of the government are generally borne by a 
revenue derived from State taxes, laid and collected under the laws 
thereof. In some of the States there is a revenue derived from 
the sale of the public vacant lands of the State. Premiums paid 
to the State by banks and other corporations, for Acts of incorpo- 
ration, are, in some instances, sources of revenue. Some of the 
States hold stock or shares in banks or other corporations, the di- 
vidends on which afford an annual income to the State. And in 
some instances, canals, turnpike roads, railroads, and other public 
structures and improvements, made and formed by the State, yield 
receipts for its treasury. 

In general the State Legislatures have the power of taxation 
without restriction ; except as to taxes or duties on imports, 
exports and tonnage, which they are prohibited from laying by the 
federal Constitution. In some of the State Constitutions there are 
express prohibitions "to levy a jjoll tax for State or county 
purposes." 

The various kinds of taxes in a State are, in general, as follows : 
I. State taxes, the rate of which is fixed by the Legislature, gen- 
erally for each year. II. County taxes, the rate of wliich the 
County Commissioners or trustees are authorized to fix, with cer- 
tain restrictions. III. Township taxes, which the township trus- 
tees or supervisors may assess, not exceeding a certain rate. City 
and borough taxes are similar to these, assessed by the officers 
thereof, according to their charters or Acts of incorporation. 
lY. In some States, the school taxes, which may be laid by the 
county trustees or commissioners, or district school directors, not 
exceeding a certain amount. V. The poor tax, which is fixed, 
not to exceed a certain rate, by the trustees or commissioners, 
or the directors of the poor of the townships. The mode of 
assessing and collecting such taxes is referred to, more fully, in 
this chapter, under the heads of the different county and township 
officers. 

26* 



306 COU^TT AND COUNTY OFFTCERS. [PAET U. 

The objects of taxation under tlie State laws are, in general, as 
follows : Beal estate, including land and buildings, rated accord- 
ing to its assessed value : Personal property, including stocks in 
corporations, dividends of banks and other companies, debts 
bearing interest, the capital of merchants, manufacturers and 
brokers ; offices, professions, occupations and trades ; licenses to 
auctioneers, innkeepers, pedlars and the like. 

State loans and stocks. 

33. What are State loans and stocks ? ,; 
Certificates of indebtedness or obligations to pay money issued 

by a State, payable to the holder, or order, or assigns at fixed 
periods, and bearing interest payable semi-annually or annually. 

Many of the States have borrowed money, to a large amount, 
for the purpose of internal improvement, or other extraordinary 
expenses, on such public loans or stocks. 

Secretary of the State. 

34. The Secretary of State is generally appointed by the 
Grovemor of the State, with the consent of the Legislature, and in 
some instances without it, and for the same term of office as that 
of the Governor ; as provided by the Constitution. 

In his office is kept the Seal of the State. The originals of all 
the laws, and public documents, are filed, deposited and recorded 
in it; authentic copies thereof to be furnished, when duly required. 
A register of all the official acts, proceedings and appointments 
of the Governor, is made and preserved therein, and all commis- 
sions to State and county officers, with the Seal of the State, 
signed by the Governor, and attested by the Secretary of State, 
are issued from it ; as are all other documents, requiring the Seal 
of the State. The returns of the election of members of Con- 
gress, State and county officers are transmitted to this office, and 
filed in it. The Secretary of State has the superintendence of the 
publication and printing of the laws, and of the distribution of the 
printed copies thereof, in the manner prescribed by law. It is 
through him that the correspondence of the State is conducted, 
and communications to it, and from it to other governments, 
bodies politic, or individuals, are properly made. 

There is generally an officer of a State called the Deputy 
Secretary of State, appointed by the Secretary of the department, 
with the approbation of the Governor, and removable by the 
Secretary whenever he shall deem it expedient. 

State Treasurer. 
35. The State Treasurer is, in general, elected every year by 



CH. Vn.] A STATE AND STATE OFriCERS. 107 

the Legislature of the State ; in some States, by the people ; as 
directed by the Constitution of the State. 

It is his duty, in general, through his department, to r(^ceive and 
have the charge and custody of the public money of the State ; to 
superintend the collection of the State taxes, and of all the debts 
due to it ; and to pay and disburse money out of the treasury, on 
warrants and orders thereon, or otherwise, as directed by law. He 
is required, at certain periods, to furnish to the Auditor or Comp^ 
troller of the State an account of all money received and paid by 
his department, together with the vouchers for the payments so 
made, for adjustment and settlement 5 and annually to present to 
the Legislature a report exhibiting in detail the receipts and 
expenditures for the preceding year, containing a statement of the 
finances of the State, and giving an estimate and plan of future 
revenue. 

It is generally provided by the Constitution of a State that the 
•State Treasurer's annual account of the receipts and expenditures 
of the State shall be published, for the information of the people. 

^tate Auditor or Comptroller. 

36, The Constitution of a State generally requires that there 
shall be a State Auditor or Comptroller, and prescribes the mode 
of his appointment. He is, in most instances, appointed by the 
Governor of the State, with the advice and consent of the Senate ; 
though in some States he is elected by the Legislature or the 
people ; his term of office being, generally, the same as that of the 
Governor. 

His duties are, in general, to examine, adjust and settle, all 
claims, bills and demands for money against the State ; the ac- 
counts of officers and agents entrusted with the collection, receipt 
-or disbursement of the public moneys the accounts particularly 
of the State Treasurer ; and to preserve the vouchers relative to 
such accounts, and to keep a proper register of them. 

In some States it is made his duty to present annually to the 
Governor, or to the Legislature, an account of the finances of the 
•State, with an estimate of expenses for the ensuing year, and of 
the accruing revenue and resources. 

Land Office. 

37. In some States there is a Land Office, established by law^ 
under the charge of a Secretary thereof. It has the management 
and direction of all affairs relating to the lands belonging to the 
State ; the survey and sale of such vacant and unsettled lands, the 
granting and issuing of deeds or patents therefor, and the collec-" 
tion and receipt of purchase money due thereon ; all the documents 



A STATE ANT) STATE OFFICERS. [PAET H, 

and ijaperg concerning tte lands being returned to, and deposited 
and preserved in, this office. 

Commissioners of canals and railroads. 

39. In some States there are such officers ; generally three or 
more, forming a Board, of which one is President, and having a 
stated principal clerk. It is under their direction that the laws 
for the construction of the State canals and railroads, and for their 
extension, are carried into effect. They have the general super- 
intendence and management of the canals and railroads belonging 
to the State, and the repairs thereof ; being authorized to regulate 
the transportation and travelling on them, to iix the rates of tolls 
and the modes of collection thereof, to appoint the agents and 
persons employed in the service of the State ; and to establish 
rules for these purposes, and impose fines and penalties for their 
violation. They are required by law to make an annual report to 
the Legislature of the affairs of the canals and railroads, the 
receipts from them, and the expenditures on account of them. 

These Commissioners are generally elected by the people, or the 
Legislature, to serve for three years ; in some instances, one of 
them being elected cTcry year. 

In some States there are Commissioners of Internal Improve- 
ments. 
Superintendent of Common Schools. 

40. In the States in which the system of Common Schools is 
adopted, there is a Superintendent thereof, being a State officer, 
either appointed by the Governor of the State, or elected by the 
Legislature, for a term of years, generally the same as that of the 
Grovernor. 

It is under his direction, and through his department, that the 
laws relative to these schools are carried into effect, that the State 
appropriation of money for their support is rightly distributed and 
applied, that a uniform method of instruction is observed, and a 
proper supervision of them, under the laws, is exercised. It is 
particularly made his duty to present, annually, to the Legislature, 
a report of his proceedings under the laws during the preceding 
year, the expenses incurred, the state of the schools, and the 
general operation of the system ; together with such propositions 
for the amendment of the laws in regard to the subject, and for 
the promotion of education, as experience may have suggested. 

We have had our attention directed to the provisions of the 
State Constitutions in respect to education and common schools., 
in the preceding parts of this work, (k) 

(k) See Part II, chap. III, IV, 



I 



tCH. vn.] oouNTy and county oiticers. 309 

Military officers 

41. It is generally provided by the Constitution of a State that 
the Governor shall be the commander-in-chief of the militia, and 
of the military forces of the State, except when they shall be 
called into the service of the United States ; and, also, that all 
other military officers shall be appointed or elected as may be 
directed by law. In some States, however, it is so provided, that 
there shall be an Adjutant General of the State, to be appointed 
by the Governor or the Legislature, for the same term as that of 
the Governor; that the Major-Generals shall be elected by the 
field officers of divisions respectively. Brigadier- Generals by the 
field officers of their brigades respectively, and other field officers 
and company officers by the persons subject to militia duty within 
their respective regiments, battalions and companies. 

All commissions for military officers are issued by the Governor, 
under the State Seal, and signed by him. 

See the heads " Militia," in other parts of this work. 

Judges^ 

The Judges of the courts of record are State officers, commis- 
sioned by the State, and their salaries being paid out of the State 
treasury; though, in some instances, having jurisdiction, and 
acting only in particular counties or judicial districts. See 
Judiciary. 

COUNTY AND COUNTY OFFICERS. 

42. The several States are, in general, divided, in regard to 
territory, for the convenience of internal government and the 
administration of the laws, into counties, and each county into 
townships or districts. Cities, which are divided into wards, may 
exist in counties, and boroughs, in which there may be wards, and 
towns may be included in townships. In some States counties are 
divided into what are called towns or parislies, and these may 
embrace boroughs and villages. 

These divisions existed from the earliest history of the country, 
before the formation of the general government. 

43. Counties are formed and erected by statute, or Act of 
Assembly. They are generally so organized as bodies politic, or 
public municipal corporations. '' ' As such they may sue and be 
sued at law ; may take and hold real estate, within their respective 
limits, and personal property ; make contracts ; become indebted. 
and have debts due to them ; for the objects and purposes autho- 
rized by la^'. Their powers are exercised respectively by officers 
called county commissioners or trustees. Each county has m 



S'lO eOTT^TTT AND COUNTY OFFICERS. ' [PASl^ U. 

countj seal, to- be kept by its commissioners or trustees, and use(2 
for the authentication of their official acts and proceedings. 

The title to the county court-houses, jails, Tivork-houses, and 
buildings for the county ofSces, is vested in the comities respec- 
tively, for the use thereof. 

County taxes and expenditures. 

44. What are^ in general, the objects of expenditure by a 
county ? 

The erection and keeping In repair of a court-house, jail, and 
buildings for the county officers ; the accommodation of the courts 
in the court-house whilst in session ; the pay of jurors and consta- 
bles for attendance at court ;. costs in certain criminal cases ; the 
maintenance of prisoners in jail ; building county bridges : paying- 
viewers of public roads, road and bridge damages ; the pay of the 
officers of the general election in the county ; the pay of the sheriff 
and other officers for services performed for the county ; coroners'" 
inquests post mortem ; the support of the poor where there is a 
county poor house ; and various matters directed by law to be 
done at the expense of the counties severally. 

How is money obtained for defraying the expenses of the county ? 

By taxes assessed and collected for the use of the coujity, called 
county rates and levies t and from the proceeds of fines and for- 
feitures. 

There are, in some of the States, certain' fines and forfeitures, 
imposed on persons convicted of crimes and offences, or otherwise 
incurred, directed to be paid into the treasuries of the counties for 
the use thereof, as, also, in some instances, certain costs of court 
in civil eases. 

Courts of justice. Seat of justice. 

45. There is generally a court for each county, with original 
jurisdiction, whose sessions are held at stated periods in every 
year ; and, in most cases, a court of review, or of errors and 
appeals ; according to the judicial system of the State. The 
clerk or prothonotary of tke court has his office in the county. 
There are sometimes several courts held in a county of different 
jurisdictions, as to civil or criminal cases, or as to tke amount or 
Talue in controversy, {m) 

In some States there is a Judge of Pr-obate in each county. 
There are Justices of the Peace, or like officers, in each county : 
and in some States, in each township or parish. 

The borough, town or place where the county courts are held is 
©ailed the Seat of justice of the county, or shire town. In su.ck 

(jhJ See Part 11, cliap. Y. 



OH. Vn.] • COUNTIES AND COUNTY OEFICERS 311 

place the county offices are established and administered, and the 
courts held in public buildings erected for the purpose, and there 
is a county jail. 

County officers. 

46. The civil officers of a county are, generally, a Prothono- 
tary or Clerk of the county court or courts, a Register, a Recorder 
of Deeds, a Sheriff, a Coroner, County Commissioners, or Trus- 
tees, or a Board of Police, a County Treasurer, a County Auditor, 
or Auditors, a Surveyor, and in some States a Ranger, Directors 
of the Poor, Notaries Public. 

These officers attend to the discharge of their duties in appro- 
priate public buildings, at the county town or seat of justice. 

County Commissioners, Trustees, or Board of Police. 

4t. They are officers elected by the people of the county ; 
who are authorized to assess and cause to be collected county 
taxes, as prescribed by law ; to make contracts for the erection 
of a court-house, jail, county offices, and county bridges, and the 
repairs thereof; to direct the application of the funds of the county 
to the proper objects of expenditure ; and to perform various other 
duties as provided by law. The expenses of the county are paid 
by their orders on the county treasurer. 

They form a Board, having a stated clerk, and their office being 
at the seat of justice of the county. 

They exercise the corporate powers of the county. The county 
seal is kept by them, at their office ; and it is applied by them to 
their warrants, precepts, certified copies of their proceedings, and 
their other official papers. 

The lists of taxable inhabitants of the county, the returns and 
valuations of taxable property, and assessments of taxes, as made 
by the assessors or other officers of townships, or parishes, are 
filed in their office. 

They are required to publish, every year, a statement of the 
receipts and expenditures of the county, as settled by the County 
Auditor or Auditors. 

In some States there are county Boards of Police, with powers 
similar to those of County Commissioners or Trustees in other 
States. 

' ' The qualified electors of each county shall elect five persons 
for the term of two years, who shall constitute a Board of Police 
for each county, a majority of whom may transact business ; which 
body shall have full jurisdiction over roads, highways, ferries and 
bridges, and all other matters of county police, and shall order all 
county elections to fill vacancies that may occur in the offices of 
their respective counties. " Cons, of Mississippi, Art. Y, Sect. 20. 



312 COUNTIES AND COUNTY OFFICERS. . [PART H. 

" The members of the Board of County Police shall ea^oj^cio 
be conservators of the peace, and shall by law be vested with 
ample powers in this respect. " Cons, of Mississippi, Art. V, 
Sect. 22. 

County Treasurer. 

48. There is a Treasurer for each county, elected by the peo- 
ple, every one or two years. 

It is his duty to receive and have the charge of the moneys 
arising from the county taxes, and otherwise belonging to the 
county ; and to pay out the same on the orders or wan-ants of the 
county Commissioners or Trustees, and in other manner, as directed 
by law. 

He is required, once in every year, to state his account, and 
produce his vouchers, for settlement by the county Auditor or 
Auditors. 

Prothonotaries or clerks of courts. 

The duties of these officers are, in general, to record the 
proceedings, judgments, orders, and sentences of the courts, to file 
and preserve the records and papers thereof, to give authenticated 
copies of them, to issue judicial writs and process under the seals 
of the courts ; and to perform various services prescribed by law. 

From these offices are, in general, issued process by which suits 
at law are commenced, or writs of execution therein, subpoenas for 
•Ritnesses, and other legal process. Here are entered of record 
judgments, by confession or otherwise, which are liens on real 
estate. In most States the returns of the elections held in the 
county are filed in these offices. 

Register. 

49. The office relates to the registry of wills and testaments, 
and papers concerning the estates and property of decedents. 

All wills and testaments are generally required to be filed and 
recorded in the ofiice of the Register of the county, who takes the 
probate of the same, and grants letters testamentary thereon. He 
grants letters of administration on the estates of intestates. In his 
office also are filed the accounts of executors and administrators 
for settlement. These duties are performed in some of the States 
by the clerk of the county court. 

In some of the States the officers who perform these duties are 
called Registers of Probate ; and there are Judges of Probate, 
havino" jurisdiction of questions touching such matters. 

In some States there are distinct Orphans' courts, for the several 
counties, the clerks of which have offices in which are filed and 
recorded the proceedings of the courts for the appointment or 



CH. VII.] COUNTIES AND COrNTY OFFICERS. 313 

removal of guardians of minors, their accounts, the distribution of 
estates of decedents, and lilje matters. 

Recorder of Deeds. 

50. There is generally established by law a Recorder's office in 
every county in a State for the recording of deeds, conveyances 
and mortgages, and other instruments of writing. The Acts of 
Assembly of the States generally provide that if a deed for land 
and tenements is not recorded within six months, it shall be void 
against any subsequent bona fide purchaser without notice ; and 
that a mortgage of land shall take effect, as against persons not 
parties to it and bona fide interested without notice, fi'om the time 
of its being recorded, or its presentation for that purpose ; and 
that deeds recorded shall be notice, from the time of their being 
recorded, to any subsequent purchaser. Copies or exemplifica- 
tions of deeds recorded, certified by the Recorder under the seal 
ot his office, are evidence of the deeds in courts of justice and 
otherwise. 

Sheriffs. 

51. A Sheriff of a county is the executive officer of the courts 
of the county, and as such authorized and bound to serve and 
execute all writs, orders, sentences and decrees thereof. He is 
also, by virtue of his office, conservator of the peace in the county, 
and empowered to suppress affrays and unlawful assemblies, and 
generally to preserve the peace ; and to arrest all persons guilty 
of criminal offences, on personal view, and with or without war- 
rant. Sheriffs are mostly keepers of the county jails, except where 
it is otherwise ordered by law. There are various other duties, in 
relation to selecting and summoning jurors, to the elections held 
in the county, and other matters, required of him by Acts of 
Assembly. They may appoint deputies and jailers, under them, 
and remove them at pleasure ; being responsible for their official 
acts. 

Sheriffs may require the assistance of the people, in suppressing 
riots and affrays, and arresting criminals. 

For such purposes he can raise the posse comitatus, or power 
of the county, that is, such a number of men as is necessary for 
his assistance ; and every person, of proper age, and not disabled, 
is bound to obey his summons, a refusal to do so being an indict- 
able offence. 

Coroners. 

.52. The duties, in general, of a Coroner are, to serve and 
execute all writs, orders and process of the courts, where the 
Sheriff of the county is a party or interested ; and to exercise the 

27 



314 COUNTIES A^^) county orncERS. [part n. 

office of SheriflF, in case of a vacancy in the office, and until 
another SheriflF shall be commissioned. He is a conservator of the 
peace, Trithin the county, having the same power which the SheriflF 
as such possesses. He is also authorized to hold inquests post 
mortem, on the bodies of persons dying accidentally or by 
violence. 

Prosecuting Attorneys. 

51. The Attorney G-eneral of the State has the charge and 
superintendence, on behalf of the State, of criminal prosecutions 
and proceedings in general ; and in most of the States, for the pur- 
pose of conducting them, he has his Deputies in the several counties 
or courts, who are appointed and removed by him at his pleasure. 
They are called prosecuting attorneys. In some of the States, 
there are officers called Prosecuting Attorneys, elected by the 
people, or otherwise appointed for each county, whose duty it is to 
manage and conduct, on the part of the State, all criminal prose- 
cutions therein. 

Directors of the Poor. 

52. In some States, by Act of Assembly, there are poor houses 
authorized to be erected and maintained, for the support of the 
poor, at the expense of the county ; there being elected by the 
people of the county, Directors or Overseers of the poor, who have 
the management of the poor house, and under whose direction the 
laws for the relief of the poor are carried into effect. See the head 
"Directors or Overseers of the Poor," further on, on this chapter. 

County Surveyors. 

53. These officers are appointed by the chief officer in the Land 
Department, or otherwise, as directed by law. It is his duty to 
make surveys of the vacant lands belonging to the State ; in some 
cases to lay out public roads, as ordered by the courts, or accord- 
ing to law ; to fix line fences between the lands of different owners ; 
to make returns of unseated lands, for the purposes of taxation, 
and to perform similar services. 

County Auditors. 

54. They are officers, generally elected by the people, who are 
authorized to adjust and settle the accounts of the County Trea- 
surer, and other persons entrusted with the receipt and expenditure 
of the money belonging to the county. 

Notaries Public. 

55. They are officers authorized to take the proof and ac- 



CH, Vn.] TOWNSHIPS AND TOWNSHIP OFFICERS. 315 

knowledgment of instrameuts of writing in relation to commerce 
and navigation, sucli as bills of sale, bottomries, mortgages, and 
liypothecations of ships and vessels, contracts of freight, letters of 
attorney, and the like. They present bills of exchange, drafts, 
promissory notes, and commercial and negotiable paper generally, 
for acceptance and payment, and protest the same for non-accep- 
tance and non-payment ; their certificates being made bylaw pWma 
facice evidence thereof in courts of justice. Bills and notes in 
Ijanks are thus protested by them. They may administer oaths 
and affirmations in matters relating to their duties. They keep a 
register of their acts ; and have a notarial seal, with which all their 
certificates and declarations are to be authenticated. They take 
an oath of office, and give bonds for the performance of their duties. 
They receive fees of office, for particular services performed, as 
fixed by law. 

There are, in general, three notarys public in each county ; there 
being a greater number in the cities, and in some particular coun- 
ties. They, generally, are appointed by the Governor, as provided 
by law, for the term of three years, or other period. 

Township and Township Officers. 

56. Counties are divided, in general, into townships, towns, 
parishes, or districts. 

The Courts of Quarter Sessions, or other courts of the several 
counties of a State, are generally authorized to erect new town- 
ships within them respectively, to divide any township already 
erected, and to alter or determine the lines of adjoining townships, 
so as to suit the convenience of the inhabitants. 

57. In most instances, townships are bodies politic, public mu- 
nicipal corporations, (a) being made so by Act of Assembly or law, 
and having capacity as such to sue and be sued at law ; to hold 
real estate and personal property, and to make contracts, for the 
purposes of the townships, as authorized by law. The corporate 
powers of townships are, in general, exercised by officers called 
Supervisors, Trustees or Selectmen. 

58. The officers of a township are, generally. Trustees or Select- 
men, Wardens or Constables, Assessors, Supervisors or Surveyors 
of Roads, Overseers or Auditors, and Justices of the Peace. In 
some States there are, also, in each township a township clerk, 
fence viewers, and other local officers. In those States in which 
the common school system has been adopted, there are elected 
school directors for every township or school district. 

59. Township officers are generally elected by the qualified 

(a) See Part II, chapt. III. 



316 TOWNSHIPS AND TOWNSHIP OFFICERS. [PAKT n. 

voters of the townsliips respectively, at the township elections, every 
year ; no person being eligible to such office who is not an inhabi- 
tant of the proper township. 

Generally, persons are liable, by law, to be jBned for not accept- 
ing a township office, or refusing to serve when elected thereto ; 
though, in most instances, a person cannot be required to serve as 
any such officer more than a certain number of terms in a period 
of years, as three years in nine or twelve, or the like. 

60. Are all township officers required to take an official oath ? 
They are, generally, required to take and subscribe an oath or 

affirmation to support the Constitution of the United States, and 
that of the Commonwealth, or State, and to perform the duties of 
their offices with fidelity. 

Township taxes. 

61. There are township taxes, called township rates and levies, 
laid and assessed by the township Supervisors, Trustees or Select- 
men, to pay for laying out and keeping in repair, the public roads 
and bridges; and by the Overseers or Directors of the Poor, for the 
support of the poor ; and the expenses incident thereto, in the 
townships respectively. There is also a school-tax, assessed by 
the school directors, in those townships or school districts, where 
the general school law has been adopted. 

Trustees, Sdectmen, Supervisors. 

62. In some States, there are township officers called Select- 
men, Trustees or Supervisors, who are elected annually by the 
people. They exercise the corporate powers of the townships, as 
county commissioners or trustees do those of counties, having 
various duties to perform in relation to elections, taxes, roads, 
schools, the support of the poor, and like matters. 

Supervisors of roads. 

63. There are generally in every township two or more super- 
visors of the roads and bridges ; whose duty it is to attend to the 
opening and repairing of the public roads and bridges, in their 
respective townships ; and who have, for such purpose, authority 
to assess, levy and collect township taxes. They are elected by the 
people for one or more years. In some States they are called sur- 
veyors of roads. 

Public roads, are generally, authorized to be laid out and opened 
by the proper court of the county, upon the petition of the citizens, 
in the manner prescribed by law. In some States, roads of a par- 
ticular class, are authorized by the supervisors of roads, or town- 
ship trustees. 



CII. Vn.] TOWNSHIPS AND TOWNSHIP OFFICERS. SIT 

"Where roads or bridges are too expensive to be laid out or 
erected by the respective township, it being so declared by certain 
legal proceedings, they are made by the county. 

In some States, there are Commissioners of Roads and Bridges, 
elected by the people for the township, one every year to serve for 
three years ; and Path Masters or Road Masters, for particular 
roads or districts, appointed by them, or elected by the people. 

Directors of the poor. 

64. In the several States there is provision made bylaw for the 
support of the poor. The general system is, that every township 
or parish shall provide for its own poor ; and Overseers or Direct- 
ors are appointed, two or more in each township, by the election 
of the people, to receive the poor, and to take care and provide 
for them ; being authorized, for that purpose, to assess, levy and 
collect township taxes, called poor rates. Provision is generally 
made by law for compelling the particular township, where a poor 
person had his last settlement by residence for a certain period and 
other requisites, to support him. In some States the poor are 
maintained in county Poor Houses, built and kept up at the ex- 
pense of the counties respectively. 

In some instances, the duties of Overseers or Directors of the 
poor are performed by the Township Supervisors. 

Assessors of taxes. 

65. There are generally elected for each township one or more 
assessors, whose duty it is to make a list of all the taxable persons 
and property within their townships respectively, with a valuation 
of their property and estates, and to rate and assess the county 
taxes thereon, and make returns thereof to the proper county ofiS- 
cers. These assessments are also used for assessing the different 
township taxes. In some States, the enumeration of taxables, and 
valuation of property, for State taxes, and other State purposes, 
are, also, made by the township assessors. 

Collectors of taxes. 

66. There is generally a collector of taxes for each township, 
appointed by the trustees or commissioners of the county, or 
elected by the people ; who is empowered to receive, levy and col- 
lect, the county and township taxes, within the township. In some 
States, there is a collector of county taxes separately. 

Township Clerk. 

67. It is directed by law, in some States, that there shall be a 
township clerk for each township, to be" elected by the voters 
thereof every year. 

2T* 



•318 To\r?fSHi?s A^■D TOTi*-xsHrp orncERS. [paht n. 

It is his duty to act as clerk of the Trustees or Supervisors of 
the townships, and keep minutes of their proceedings. He has the 
charge and care of frhatis called the to'n'nship book, for the pur- 
pose of entering in it all matters which he is required by law to 
record, and that it may be open to the inspection of all persons 
who may have occasion to examine the same. 

In these States, any person taking up on his improved or en- 
closed lands any stray horse, cattle, or sheep, is required by law 
to give notice thereof to the owner, if he can be found, or other- 
wise to deliver a particular description of such stray to the town- 
ship clerk, whose duty it is to enter the same on his book. 

ScJiGol Directors. 

68. In those States where the common school system has been 
established, there are several school directors elected every year by 

'the people for each township or school district. It is their duty to 
provide shool houses, to employ teachers, and superintend the 
schools, as directed by law. 

The common school system is a system by which schools are 
established, by law, throughout a State for the education of the 
children of all persons gratuitously ; the schools being supported 
hj a permanent State fund, by appropriations out of the State 
treasury, or by taxes imposed on all the people of the particular 
districts ; there being State officers appointed for the general su- 
perintendence of the schools, and school directors elected by the 
people of the districts respectively. 

It is established in ^Massachusetts, Connecticut, Xew Hampshire, 
Vermont, Maine, Xew York, Rhode Island, Pennsylvania, Ohio, 
Michigan, Indiana, Texas, Iowa, "Wisconsin, California. 

TownsMp Auditors. 

69. In some of the States, there are auditors elected by the 
people for each township, every year, to adjust and settle the ac- 
counts of Supervisors of Roads, Overseers of the Poor, School 
Directors, and other persons, intrusted with the receipt and expen^ 
diture of money raised for township purposes. 

Justices of the peace. 

TO. How are Justices of the Peace appointed ? 

There are generally two or more Justices of the Peace, in each 
township ; in most instances, elected by the people, for a term of 
years ; though in some States they are appointed by the Governor, 

What is the nature of their powers and duties ? 

Justices of the Peace are judicial magistrates, of limited juris- 
diction. Their ordinary jurisdiction is confined to criminal cases. 



CH. Vn.] TOWNSHIPS AND TOWNSHIP OFFICERS. 319 

They are by virtue of their offices conservators of the peace, within 
their proper townships or districts ; and may suppress riots, affrays 
and disturbances of the peace. They have authority to receive 
complaints and informations, generally for all criminal offences ; 
to issue their warrants and process, in the name of the State, for 
the arrest of all offenders, to take their examination and testimony 
of witnesses in relation to the offence, and to commit them to gaol 
for trial before the proper court, or, except in capital cases and 
others of the highest grade, to admit them to bail for their appear- 
ance at the court to answer the charge against them. They may 
require sureties of the peace of dangerous persons, or those whom 
their is reasonable ground to suspect of an intention to commit a 
felony, or any breach of the peace. In some of the States they 
have power to try and determine, and punish for, misdemeanors and 
offences of the lesser grade. They take the acknowledgement and 
proof of deeds, conveyances, and instruments of writing. There 
are often various other duties imposed upon them by special Acts 
of Assembly. And in a few States, they have conferred upon them, 
by statute, limited jurisdiction in civil suits at law, where the sum 
or value in controversy does not exceed a certain amount ; there 
being an appeal from their judgments to some court of record. 
Their compensation is derived from fees of office allowed by law ; 
which are included in the costs of prosecution or suit, or paid by 
the parties for whom the service is performed. 

In some of the States, Justices of the Peace are judges of the 
Courts of Quarter Sessions of the Peace or County Courts, being 
associated with a President or other judge learned in the law. 

Constables. 

71. Constables are civil executive officers, in every township. 
It is their duty to serve and execute all warrants, writs, and pro- 
cess of Justices of the Peace. They are peace officers, and 
authorized, with or without warrants from magistrates, to suppress 
riots, affrays and disturbances of the peace ; and to arrest the 
offenders ; and generally to arrest persons guilty of felonies, crimes 
and misdemeanors. It is their duty to give information, to a 
Justice of the Peace or other proper magistrate, of any crime or 
offence, committed in their townships, in their knowledge ; to 
execute the warrants of magistrates for the arrest of criminals and 
offenders, or for committing them to jail. 

They are required to attend the stated sessions of the ordinary 
courts of the county, and to make returns thereto of certain 
offences, and violations of the law, that may have been committed 
in their respective townships, in their knowledge ; and a certain 
number of constables may be selected by the courts to attend their 



320 CITIES A>-D BOROUGHS. [PART U. 

sessions, to preserve order, and act as ministerial officers of tlie 
court. 

There are many other duties devolved on them by special Acts 
of Assembly, relative to elections, the roads, and various local 
matters in the townships. 

Their compensation is derived from fees, perquisites, or costs 
allowed by law ; and, in some cases, they receive daily pay from 
the county, for making their returns to the courts, and attending 
upon them at their sessions. 

There are generally elected by the people two constables for 
each township, to serve for a year. (?i) 

Cities. 

72. A city is a large town incorporated as a city by a law of 
•the State, with power in its inhabitants to make by-laws or ordi- 
nances for their government in local matters, to appoint certain 
officers, and to levy and collect taxes for these purposes. 

73. The officers of a city, under its Act of incorporation, are 
usually, a Mayor, Recorder, members of the Council or Councils, 
Solicitor, Treasurer, High Constable, Assistant Constables, Street 
Supervisors, Watchmen, and the like. 

A city is, generally, divided, for the pur^DOses of civil govern- 
ment, into wards and precincts. It is, also, in most instances, a 
.part of the county in which is it situated, and as such subject to 
the general laws of the State, except where it is otherwise ex- 
pressly provided by law. 

In some of the State Constitutions it is made the duty of the 
Legislatui-es to pass laws restricting the powers of cities, and 
other municipal corporations, to lay and assess taxes, to borrow 
money and to contract debts. See Part II, chap. lY. 

What officers under the general laws of the State are there usu- 
ally in a city ? 

Judges and other officers of the courts of justice ; the several 
county officers, as Sheriff, Coroner, Recorder of Deeds, Register, 
County Commissioners, County Treasurer, and County Auditors ; 
and in the wards respectively, Aldermen, Constables, Assessors of 
taxes and Collectors of taxes. 

Ilayor. 

74. What officer is a mayor of a city ? 

A mayor is the chief magistrate of a city under its charter or Act 
of incorporation. He has judicial cognizance especially of prose- 
cutions and suits for violations of the ordinances of the city. In 
some of these cases he is authorized to try and determine, and 

(n) See Part II., chap. VI,, head Constables. 



CH. \TI.] CITIES AND BOROUGHS. 321 

punish, by summary conviction ; but generally he must proceed by 
issuing process, and holding to bail or committing the offender for 
trial at the proper court, which is mostly a Mayor's Court held by 
himself or the Recorder together with a certain number of the 
aldermen of the city 

In many of the States, the mayors of the cities are also vested, 
oy statute, with the powers of conservators of the peace, in gene- 
ral, within their respective cities, and authorized to entertain com- 
plaints for offences at common law and under the general law of 
the State ; to issue warrants and process thereon for the arrest of 
the offenders, and to admit them to bail, or commit them to gaol, 
in order to their trial before the proper court of justice ; and in 
some cases to try, determine and punish in a summary manner. 

There are often, various incidental duties and powers appertain- 
ing, under statutes, to the office of a Mayor of a city ; such as 
taking the acknowledgment and proof of deeds and other instru- 
ments of writing, administering oaths and affirmations, performing 
the marriage ceremony, and the like. 

Aldermen. 

75. Aldermen are judical magistrates in cities, having therein 
the same jurisdiction and powers which Justices of Peace exercise 
in the several townships, under the laws of the State ; and having, 
also, cognizance of suits and prosecutions, and various powers, 
under the ordinances of the city. There is, generally, one or more 
aldermen for each ward in a city ; in some States appointed by the 
Governor of the State, but, in most cases, elected by the people 
for a term of years. In some cities they are members of the 
Mayor's Court of the city. Their compensation is derived from 
fees prescribed by law. 

Boroughs. 

76. A borough is an incorporated town, the inhabitants of 
which are authorized by its charter or Act of incorporation to make 
by-laws or ordinances for the regulation of local matters therein, 
to elect borough officers, and to assess and collect taxes for such 
purposes. 

Towns are incorporated as boroughs, generally, by an Act of 
the Legislature of the State. In some States provision is made by 
law for incorporating them by the courts of justice. 

The officers of a borough are, usually, a chief burgess, assistant 
l)urgess, members of the town council, treasurer, town clerk, high 
constable, and assistant constables. 

A borough is, generally, divided into wards. It is part of the 
township in which it is situated ; the general laws of the State 



322 CITIES AND BOROrGHS. [PART n. 

operating within it, as they do in other parts of the township or 
county ; except where it is otherwise provided by law. Boroughs, 
however, are in most instances made by law territorial divisions 
and parts of their respective counties, in relation to county and 
State affairs, and to the administration of the laws, in the same 
manner as townships are. 

The officers within a borough, under the general laws of the 
State, are Justices of the Peace, Assessors, Collectors of Taxes, 
and the like. 



APPENDIX, 



NOTE, A. 

The proposition that the federal Constitution was the act of 
the people of the United States, as stated here, and in other parts 
of this work, has the preponderance of political and judicial autho- 
rity in its favor, and is now generally received as correct- It has 
heen held, in contradistinction thereto, that the Constitution was 
adopted by the several States, or by the people of the States sever- 
ally, as sovereign political bodies or communities. And on this 
last mentioned statement has been founded the opinion of some, 
that the Constitution is to be considered a contract, a league, be- 
tween the several States, in their original sovereign political capa- 
cities respectively, and that, from its nature, it is the subject of 
Tescision or abrogation ; any State, as a party thereto, having a 
right, for what it deems a violation thereof, to recede from its ob- 
ligations. In connection with these views, it has been held, by 
some, that the States, at the time of the formation of the Consti- 
tution, are to be regarded, in their relations to each other, as only 
several and distinct communities, though confederated for certain 
purposes ; and in the view of others, they are to be considered as 
having been then, in fact, united as a nation ; having a general 
government, created and acting by the common consent of all the 
people of all the States, 

There can, of course, be nothing more h«re given than a mere 
reference to the existence of these different representations, as 
bearing on our general subject, without recurring to the particular 
grounds on which they have been made, or to the theories derived 
from them. 

Tlie important consideration is, that, whichever of the two first 
mentioned propositions, relative to the manner in which the Con- 
stitution was formed, may be correct, and consistently with either, 
it is an act and ordinance of government, established by the people 
of the United States ; according to the view presented in this 
work. And, as following from this position, it is thought proper, 
in this connection, to exhibit and inculcate these principles in re- 
gard to the nature and powers of our government 

523 



B2i A^PESmiX, 

Tlie general government is one of limited and enumerated pctrers f 
whicli are given by the express terms of the federal Constitu- 
tion, or by the necessary implication therefrom. 

In our system of government the several States exist as organized 
bodies, in their political capacities, being recognized as such in the 
Constitution, and performing important acts under it. 

By the Constitution there are reserved to the people of the States- 
severally, all the powers not delegated by it to the general govern- 
ment, or any department thereof, or relinquished or restricted by 
mutual stipulations in it between the States, or prohibited by it to the 
States severally, or the people ; these reserved powers and rights 
not being derived from the Constitution, as their source, but being 
those originally possessed by the several States, and the people, by 
virtue of their inherent sovereign authority, and excepted and re- 
tained out of the powers conferred by the Constitution ; being, in- 
deed, the residuary sovereignty and rights of the several States and 
the people. 

The several States, the people thereof respectively, are sover- 
eign in the enjoyment and exercise of all their reserved and resi- 
duary powers. The several States, the people thereof respectively, 
are sovereign iu the ownership of their own soil and territory, and 
in their jurisdiction over them, exercised conformably to the Con- 
stitution. The several States are sovereign, as to their municipal 
laws and internal police. 

A prohibition in the Constitution upon a State, as to any given 
subject, cannot enlarge or vary the powers delegated to Congress, 
or the general government, so as to bring withiu its jurisdiction, 
any matters not withiu the enumeration of the powers granted 

The federal Constitution is an aet and ordination of government,, 
paramount and supreme, throughout the limits of the Union, unal- 
terable and irrevocable, except in the manner prescribed by itself. 

The Constitution has provided for its own interpretation, in refer- 
ence to matters occurring in the course of the admiuistration of 
justice, through the Supreme Court of the United States, than 
which there can be no other of any authority or force. And, in 
consequence, no State, or the people thereof, can constitutionally 
annul any law of the United States, or resist or prevent its oper- 
ation within the boundaries thereof: And no State, nor the people 
thereaf can constitutionallv secede from the Union. 



APPENDIX, :325 



NOTE, B. 



' ' Slaves have no political rights or power, and in the represen- 
tation of federal numbers are regarded as property. The basis of 
representation by federal numbers is composed of people and pro- 
perty. " "The inevitable effect of making five slaves equal to 
three freemen is to take power from the majority of the people ,; 
and so long as this apportionment of representation among the 
States continues, a minority of the people of the United States, in 
the aggregate, may elect a majority of the members of the House 
■of Representatives ; and the conventions or legislatures of a num- 
ber of slaveholding States being a minority of all the States can 
perpetuate this state of things, " by preventing an amendment to 
the federal coustitution. Baldwins^ Constitutional Views, p. 22- 



38 



S2e 



KOTE, C. 



Population of the United States and number of Bepresenta- 
tives in Congress from each State.^ 



STATES. 


White Popu- 


Free colored 


Total free 




Federal 


No of 




lation. 


population. 


population. 


Slaves.. 


popula- 
tion. 


Keps. 


Maine, 


581.813 


1,356 


583.169 




68o,169 


6 


New Hampshire, 


3i;;456 


520 


317.976 




317,976 


3 


Yermont, 


313.402 


718 


314:120 




314.120 


3 


Massachusetts. 


985.450 


9,064 


994.514 




994,514 


lit 


Shode Island, ' 


143:875 


3,670 


147,545 




147.545 


2t 


Connecticut, 


363,099 


7,693 


370,792 




370',7.92 


4t 
33 


NeTT Xork, 


3,048.325 


49.669 


3,097,394 




3,097,394 


New Jersey, 


465,513 


23,820 


489,466 


222 


489.466 


5 


Pennsylrania. 


2,258,463 


53,323 


2,311.786 




2.311.786 


25 


Delaware, 


71..169 


18.073 


89,242 


•2,290 


' 90,616 


1 


Maryland, 


417.943 


74,723 


492,666 


90,368 


546,886 


6t 


Tirginia, 


894,800 


54,333 


949.133 


472.528 


1,232,649 


13 


North Carolina, 


553,028 


27,463 


5S0.491 


288,548 


75-3,619 


St 


South Carolina, 


274.567 


8.956 


283523 


384.984 


514,513 


6 


Georgia, 


52i;572 


2:931 


524.503 


38i:682 


753,512 


8 


Florida, 


47'.211 


'924 


4S:i35 


39.309 


71.720 


1 


Alabama, 


426;4S6 


2,293 


428'779 


342,878 


634,514 


7t 


Mississippi, 


295.718 


930 


296.648 


309.878 


482,374 


5 


I/Ouisiana, 


2.55:491 


17,462 


272.9.53 


244:809 


419,838 


4 


Texas, 


154.034 


397 


154:431 


58,161 


189,327 


2 


Arkansas, 


162;i89 


60S 


162.797 


47.100 


191,057 


2 


Tennessee^ 


756,753 


6.401 


"63:154 


239:460 


906,830 


lot 


Kentucky, 


761,417 


10,007 


771,424 


210,981 


898,012 


'?f 


Missouri, 


592,004 


2,613 


594.622 


87,422 


647,075 


Ohio, 


1,955,108 


25,319 


1,980.427 




1,980,427 


21 


Michigan, 


395,09T 


2,557 


397,654 




397,654 


4 


Indiana, 


977,628 


10,788 


988,416 




988.416 


11 


Dlinois, 


846,035 


5,435 


8.51,470 




85i:47.J 


9 


■Wisconsin, 


304,758 


63? 


305.391 




305,391 


3 


Iowa, 


191.879 


335 


192:214 




192,214 


2 


California, 


9i:632 


965 


92:597 




92 597 


2 


Total 


19,423,915 


42.3,384 


19,847,301 


3,200,634 


21,797,673 


234 


District of Columbia, 

Minnesota, 

New Mexico, 

Oregon, 

Utah, 


38.027 

6,038 

61,530 

13,088 


9,973 
'39 
17 
206 


4'.000 
6.1.177 

13.294 


3,687 


' 




11,330 


24 


11,354 








Total. 


19,553,928 


433,643 


19,987,573 


3,204,347 







RECAPITULATIOX 



states. 


Total free popu- 
lation. 


Slaves, 


Representative 
population . 


Representa- 
tives. 


?ree States, 

Slave States, 

Bistriets and Territories, 


13,434,798 

6,412.502 

140,272 


222 

3,200,412 

3,,713 


13,436,931 
8,330h''42 


143 
9d 



* See, as to the number and apportionment of Representatives, p. 75. 

t The above table is taken from the census of 1S50, on which the apportionment of E& 
presentatives is founded. In the column of Repre.=entative3 the numbers marked thus^ 
Sncbida one Representative allowed fcr the residuary fraction of federal populatiDn, 



INDEX. 



Academy military, power of Con- 
gress, 105. 

Accounts against U. S. how settled, 
160, against a State, 307. 

Accused persons, their rights, 224, 
134, 140, 178 ; as to cause of ac- 
cusation, 140, confronted with 
witnesses, 140, process for their 
witnesses, 140, not to testify 
against themselves, 224, 140, to 
have counsel, 224, not twice put 
in jeopardy, &c., 140, 224, pro- 
tection of due process of law, 
140, 224, no excessive bail, to 
be bailed, 141, 224 -, See Indict- 
ment, Trial by jury. Costs. 

Acknowledgment, see Deeds and 
Conveyances. 

Acts of Assembly, what, 203. See 
Laws. 

Acts and Records, of a State, in 
another State, 113, 133. 

Acts of Congress, 

how enacted, 113 — 6 ; their au- 
thority, 45, 116 ; bills in Con- 
gress, 113, 114; date of Acts, 
116, when they take effect, 116, 
repeal former Acts, &c., 116, de- 
clared unconstitutional, 57, 116 
— 7, where filed and recorded, 
157 ; see Laws. 

Admiralty jurisdiction, 172. 

Administration, State, 193, federal, 
35, 43. 

Admission of new States, 111. 

Age, when a person is of full, 211. 

Aldermen, 290. 

Alliance, see Treaty. 

Aliens, who are, 98, 211, 237. 
their rights and disabilities, 211; 
how naturalized, 50, 98 ; on 
what conditions, 98. 



Allegiance, to U. S., 46, 51 ; to a 
State, 46, 294; oath of, 51, 294. 

Ambassadors, 161, 104, 224. Pre- 
sident to receive, 152. See 
Treaties. 

Amends.,of Cons, of U. S., 62, ot 
State constitutions, 22. 

Annexation of foreign territory, 49. 

Appellate jurisdiction, what, 170. 

Appeal and writ of error, defini- 
tion, 170. 

Appointments, See Officers. 

Apportionment of Representatives 
in Congress, 73, 74 ; of mem 
bers of State Legislature, 240. 

Appropriations by Congress, 92 
121 ; for armies, 121, no pay 
raent without, 92, 121, 166, no 
extra pay to officers without 
166, by State Legislature, 251 
255. 

Arbitration, 263. 

Arrest, see Warrants; privilege of 
members of Congress, 77 ; of 
State Legislatures, 77, 243. 

Aristocracy, 35. 

Arms, right to bear, 141 ; for the 
militia, 106. 

Army, power of Congress, 121, 
105, prohibition on the States, 
105, no standing army, &c., 234. 

Arsenal, offences in, 103. 

Asylums, 257. 

Assemble, right of people to, 223. 

Assessors of taxes, in a State, 317. 

Attainder, what, 119; provisions 
of State constitutions, 224 ; no 
bills of, 119, 127. 

Attorney General, of U. S., 189 ; 
of a State, 290. 

Attorneys at law, in courts of U. 
S., 189. District, of U. S., 189. 
C327; 



328 



INDEX. 



in State courts, 190, right to em- 
ploy counsel, 224. 

Auditors in Treasury Department 
of U. S., 159. 

Auditor General, in a State, 307. 

Auditors, county, 314, township, 

318. 

Bail, all persons bailable, when, 
141, 224 ; excessive not to be re- 
quired, 141, 224. 

Ballot, what, 231, 134, 51 ; box, 
301. See Elections. 

Bank national, power of Congress, 
&c., 91, States cannot tax, 91, 
a public corporation, 210. 

Banks, Cons, provisions, 232, 253. 

Bankruptcy, power of Congress, 
99 ; Acts of Congress, 100, 
of bankrupt law, 99, power of 
State legislatures, 100, 124. 

Bank notes. See Currency. 

Bills of Credit, 100. 

Bills of Attainder, what, 119, pro- 
visions of Cons, of XJ. S., 119, 
of State, Cons. 224. 

Bills, in Congress, what, 113 — 4. 
proceedings on, 113 — 6. in State 
legislatures, 203, rejected, 263. 

Bill of rights, definition, 214, 136; 
declared rights, in Cons of 
U. S., 45, 133, by colonies, 40, 
in the States, 214. 

Boroughs, what, 321, officers of,32. 

Bureaus, in Executive depart- 
ments of U. S. 158 — 9. 



Cabinet, of Pres't of U. S., 157. 
Capitation tax, 120. 
Calendar months, in law. 
Canal Commissioners, 308. 
Census, of U. S., how made, 74, 

189, of taxables, &c., 294. ' 
Certiorari, 171. 
Chancery law, what, 207 : courts 

of. 207. 
Chancellor, 207. 
Charges des affaires, 158. 
Charter governments, 39. 
Citizens, of U. S., 50, 46, 211, of 

the States, 46, 193, naturaliza- 

iion, 50, allegiance of, 46, 193j 



protection of, 46, 97, privilege in 
another State, 51 ; expatria- 
tion, 51. 

Circuit Courts, see Judiciary of 
United States. 

Cities, 321 ; officers of, 290. 

Claims against U. S., how settled, 
160, officers not to be concerned 
in, 166; or in prosecuting, 166, 
against a State, 307, 4 

Claims, Court of, 160, 188. 

Coasting trade, see Commerce, 
Navigation. 

Colleges, State constitutional pro- 
visions, 235, 255. See Schools. 

Commissioners, county, 311, 

Commission of Oyer and Termi- 
ner, no, 230. 

Corporations, definition, 209, ag- 
gregate and sole, 209, ecclesi- 
astical and lay, 209, public and 
private, 209, how created, 210, 
properties of, 209, Congress may 
create, 210, public municipal, 
209, 210, 232, cons, provisions, 
252. 

Costs, acquitted not to pay, 264. 

Crimes, &c., against U.S., 102, 104. 

Custom-houses. See Revenue, Na- 
vigation, Commerce, 25. 

Corruption of blood, 119, 224. 

Council executive, in a State, 272. 

Counsel, right to have, 230. See 
Attorneys at Law. 

Counterfeiting, power of Cons:ress, 
101. 

Counties, 309, corporate bodies, 

309, courts in, 310, officers in, 

310, taxes in, 310, expenses of, 
310. 

County Auditors, 310. 

County Commissioners. 311. 

County Rates and levies, 310 — 1. 

County Treasurer, 312. 

Courts, see Judiciary, to be open, 
237, of record, and not of re- 
cord, 170, of claims, 160, of con- 
sultation, 291. 

Criminals, see ' Accused persons.' 

Currency, Congress to regulate, 
100, States not to coin money, 
100, or emit bills of credit,. lOO'. 

Customs, see Imports. 



INDEX. 



329 



Currency, continued; power of State 
legislature, 244. 

Day, what in law, 213. 

Debtors, when not to be impri- 
soned, 234. 

Declaration of Independence, 37, 
214 ; national era, 37, act of all 
the people, 37. 

Declaration of rights, see Bill of 
Rights. 

Declared principles in federal con- 
stitution, 45, 133, 136. 

Delegated powers of government, 
45. 

Denizens, 273. 

Debtor's property exempt, 258, 
homestead, 258. 

Domain public, of the U. S., 49, 
107. 

Debate, freedom of, 77. 

Deeds and conveyances, recording, 
313, before whom acknowledged, 
313. See Mortgages. 

Democracy, form of government, 
35. 

Departments, of government of U. 
S., 47, 44, its powers distributed, 
47, 144, legislative, 47, 64, ex- 
ecutive, 47, 143, judicial, 47, co- 
ordinate, 47, 156, subordinate 
executive, of U. S., 15, 67, 161, 
heads of 156, 161. 

Departments general, of State 
governments, 197 — 8, co-ordi- 
nate branches, 198, subordinate, 
of State governments, 305. 

Despotism, 35. 

Directors of the Poor, 000. 

Discovery, of new country, right, 
70. See Patent Right, 000. 

Districts judicial, of IJ. S., 165, 
officers thereof, 165. 

District Courts of U. S., 187. 

District Attorney, of U. S., 186, 
881 ; of county, 314. 

District schools, 318. 

District of Columbia, 49, 107. 
Congress has exclusive jurisdic- 
tion, 49, 103 ; 106, government 
of, 49, 107. Congress may lay 
ti..x it), 107. 

Divorce, coas. provision, 257. 



Dockyards, offences in, 103. 

Domestic manufacturers, see Ta- 
riff. 

Duelist, not to hold office, 241, 
262, 295. 

Duties, see Taxes. 

Education, see Common Schools, 
Seminaries ; Cons, provisions, 
235, 255. 

Elections in the State, 212, quali- 
fications of electors, 300, mode 
of voting, 231, 300 ; cons. 
provisions, 230, privilege of 
electors from arrest, 300, bribe- 
ry, 295, officers of elections, 
301, how conducted, 301, deter- 
mined by plurality of votes, 301, 
general, 299, returns, 300, town- 
ship, 301, special, 315. 

Electors, see Elections. 

Electors of President and Vice 
President of U. S., how appor- 
tioned, 144 — 5, qualifications, 

144, time of election, 144, col- 
lege of, 145, time of meeting, 

145, mode of voting, &c., 145, 
place of meeting, 145, vacancies 
supplied, 145. 

Embargo, power of Congress, 94. 

Emigration, right of, 237. 

Engrossment of bills in Congress. 

Enlistment, under foreign govern- 
ment, 104. 

Enrolment of bills, in Congress, 
116, in State legislatures, 268, 
of ships, 97. 

Entry of imported goods, what, 
90, ports, 121. 

Entailments, 237. 

Enumerated powers of general 
government, 45, 84, of Con- 
gress, 84. 

Enumeration of people, see Cen 
sus ; of taxables, 294. 

Envoys, 104, 161. 

Equity, see Chancery. 

Equality of rights, by State Con- 
stitutions, 214, 219, by Declara- 
tion of Independence, 215. 

Evidence of records, of one State 
in another,113. 

Excise taxes, see Taxes. 



330 



INDEX. 



Executive council of a State, 272. 

Executive department of general 
government, 47, 143, 157 ; sub- 
ordinate branches, 157. 

Executive of U. S., 143, a S*cate,272. 

Executive departm't of a State, 272. 

Executive officers of U. S., 155, of 
States, 272, 292. 

Exemplification of records, by Se- 
cretary of State of U. S., 158 ; 
of the States, 306, by Recorder 
of Deeds, 313. 

Expatriation, 51. 

Exports, see Taxes. 

Ex post facto law, what, 120, 127, 
federal constitution, 120, 127, 
State constitutions, 224. 

Exports, not taxable by Congress, 
120, by the States, 120. 

Expulsion of members of Con- 
gress,83,in State legislatures, 245 

Federal government, 35, 43, con- 
stitution, 43, administration, 155, 
republic, the U. S., 35, 43, popu- 
lation, 73 — 4. 

Felonies on the seas, power of Con- 
gress to punish, 102. 

Females, political condition, 211, 
unmarried, rights of, 211, mar- 
ried, rights of, 258, 211. 

Fence viewers, 315. 

Fines not to be excessive, consti- 
tution of U. S., 141, cons, of 
States, 230. 

Fisheries, see Commerce, Naviga- 
tion. 

Forfeitures, see Fines. 

Forts, offences in, 103. 

Foreign nations, offences against, 
104. 

Foreigners, see Aliens, Commerce; 
officers of U. S., not to accept 
title or gift, 121, 221. 

Foreign territory, purchase of, 49, 
annexation of, 49. 

Free negroes, see Negroes. 

Freedom of speech and press, 121, 
libels, 222, in Congress, 77, in 
State legislatures, 243. 

Freedom of debate, see Freedom 
of speech. 

Freedom of conscience, 121. 



Fugitives from labor; 128, see 

Slaves. 
Fugitives from justice, 135. 

Gold and silver, see Tender, Coins, 
Money. 

Gaols of States, when used for U. 
S., prisoners, 189. 

Good behaviour, tenure of office, 
232 ; see Officers. 

Goods and chattels, what, 207. 

Government, forms of 35, defini- 
tion of, 35, supreme power of 
people, 217, 42, 136; power of 
people to alter, 42. 

Government of U. S., form of, 35, 

42, 193 ; commencement of, 35, 
36, 42 ; federal, what, 35, 43 ; 
general, what, 36, of limited 
powers, 45, 85 ; nature of 42, 
powers of government of U. S., 

43, 85 ; classified, 44, depart- 
ments of government of U. S., 

44, 47. 

Governments of the States, 36, 
192 ; powers, 36, departments 
of, 197. 

Governors of States, Part ii. ch. v 
executives of States, 272, exe 
cutive council, 272, election, 

273, term of service, 274, quali- 
fications, 274, compensation, 

274, duties and powers, 275. 
power as to legislation, 275, ap 
pointment of officers, 276, mili- 
tary power, 276, power of par- 
don, 276, impeachment of, 276, 
vacancy, 280 ; veto power, 
276, communications to Le- 
gislatures, 276, consulting pow- 
er, 276, conservators of the 
peace, 276, to appoint U. S., 
Senators, when, 279, as to Eeps. 
in Congress, 279, as to fugitives 
from justice, 279, registry of 
acts, 280, power of legislature 
as to his acts, 280, secretaries 
of, 280, Lieutenant Governors. 
281, to remove officers, 276. 

Grand jury, see Indictment iw i 

Trial by Jury 
Guaranty by federal govpniM- i 

to the States, 136, of a i< . ....• 



INDEX. 



331 



can government, 111, of protec- 
tion against invasion, 105, 
against domestic violence, 105. 

Habeas Corpus, writ of definition, 
119, 139, 171 ; privilege of, not 
to be suspended, 119, 224. 

Heads of Departments, of U. S., 

' 44, 47 ; States, 157. 

Hereditary titles, 221, 121, not to 
be granted, 127, officers of 
U. S., not to receive, from fo- 
reign prince, 221, not granted 
by States, 221, aliens to re- 
nounce on being naturalized, 97. 

High seas, include what, 95, see 
Commerce, 102, offiences, in,102. 

Homestead exempt, 258. 

Immigrants, 29.S. 

Impeachment, definition of, 69, 
before Senate of U. S., 89, 71, 
by H. of Rep. of U. S., 69, 157, 
punishment on, 70, for what of- 
fences, 70, who may be im- 
peached, 69, in the States, 248, 
250. 

Implied powers of government, see 
powers of government. 

Imports, States not to tax, 91, 
state tax on vendors of, uncon- 
stitutional, 94 — 5. 

Imports, see Taxes. 

Imprisonment, see Arrest, Habeas 
Corpus ; not for debt, when, 234. 

Improvements internal, power of 
Congress, 101, 91. 

Incidental powers, see Powers. 

Incompatibility of offices, see Of- 
fices. 

Independence, Declaration of, 37, 
of U. S., when. 

Indian tribes, relation to the gene- 
ral government, 52, 96, com- 
merce with, 95, 96, 103 ; terri- 
tory, purchase of, 49, 52, 96; 
Indians, 98, in the States. 

Indian agents, 96, 107. 

Indictment, right of trial by, 32, 
33, 140 ; acquitted, not to pay 
costs, 264. 

Industry, domestic, power of Con- ! 
gress, 91, I 



Infants, who are, 2il. 

Information, prosecution by, 140, 
federal constitution, 32, State 
constitutions, 140. 

Inquests, on dead bodies, by coro- 
ner, 314, 

Insolvent laws, see Bankrupts, na- 
ture of, 100, 124, in States, 124. 

Internal improvements, power of, 
101, Congress, 91, in States, 
263. 

Inspection laws, see Taxes, as to 
taxes on imports by a State, 91. 

Instruction, see Schools. 

Insurrection, States protected 
against, 105, power of Congress, 
105, powers of President of U. 
S., 106. 

Interior, Department of the, 161. 

Interest for money, 258, 

Invasion, States protected, 105, 
137, power of President, 106. 

Inventions, see Patent Rights. 

Journals, of Congress, 82, of State 

legislature, 246. 
Judges, see Judiciary. 
Judicial department, see Judiciary. 
Judiciary of U. S., Part i. c. ix. p. 
167, department of government, ^ 
47, 167, jurisdiction in general, 
167, 171, judges, how appointed, 
179, tenure of office, 180, im- 
peachment, 181, compensation, 
181. 

Supreme Court of U. S. 
Organization, 179, 182, jurisdic- 
tion, 182, 185, appeal to, from 
State courts, 183, decisions fi- 
nal, on constitutional questions, 
57, 184. 

CivcuU Courts of U. S., 
Organization, 185, jurisdiction, 
186—7. 

District Cotirts of V. S.f 
Organization, 187, jurisdiction, 
187, judicial districts, 187, 165, 
officers of Courts of U. S., 189. 
Coiirtsin U.S., Territories, ISA:^ 
Courts ill District of Colum- 
bia, 187, Court of Claims,\88. 
Jurisdiction of a Court, meaning 
of, 169, original and appellate 



3B2 



INDEX. 



lYO, exclusive and concurrent, 
1Y6, civil and criminal, 176, of 
State courts under Acts of Con- 
gress, 191, 176, and of State 
magistrates, 128, admiralty and 
maritime, 172, chancery and 
equity, 284, administration of 
justice, 236. 

Judiciary of the States, Part ii. c. 
vL Department of government, 
283, jurisdiction in general, 283, 
under laws of U. S., 285, courts 
State, 284, judges, appointment, 
286, term of office, 286, salaries, 
286, impeachment, 286, remov- 
al, 287, incompatibility, 296, de- 
cision of constitutional ques- 
tions, 284, appeal from to Su- 
preme Court of U. S., 285, law 
and fact, 291, officers of the 
Courts^ 290, to decide constitu- 
tional questions, 216. 

Judges, to file their opinions, 289, 
not to decide facts, 2dl. 

Register's Courts, 284, 312. 
Orphan's Courts, 234, 312. 
District Courts, 234. 

Judicial decisions, publication, 
291; 
^ Jury, trial by, 139, 140. 

Justices of the Peace, in the States, 
289, 128, 318. 

Justice, fugitives from, 135. 

Justice, administration, 236. 



Land, title, 237. 

Lands public, of U. S., 108, how 
surveyed and sold, 108, how ac- 
quired, 108, proceeds of sales, 
108, a common fund, &c., 109, 
see Territory of U. S. 

Land office, of U. S., 198, of a 
State, 308. 

Law, definition, 262, common, 202, 
204, statute, 202, chancery or 
equity, 207, constitutional, 54, 
protection of due process,- 33, 
140, right of remedy, 140, 236, 
in tJ. S., courts, 178. 

Law of nations, definition, 207, of- 
fences against, punished by 



Acts of Congress, 103, 104, part 
of law of the States, 207. 
Laws, statute or written, 202, rules 
of construction, 203, how enact- 
ed, 266, how repealed, 64, 204, 
date of, 202, when to take effect, 
203, repeal former laws, 204, 
public or private, 203, ex post 
facto, 120, 224, 127; declared 
unconstitutional, 116, not to be 
suspended, &c., 235, titles, 263 

Laws of U. S., see Acts of Con- 
gress. 

Laws of the States, see Laws ; how 
enacted, 203, 266, where pre- 
served and recorded, 268, 235 ; 
publication of 203, evidence of 
133, 113, declared unconstitu- 
tional, 204, suspension, 235, to 
be uniform, 237, 89, revision, 
27.0. 

Lead mines of U. S., 108. 

Legislature, definition, 64, divided 
into two branches, 64, 239, see 
Congress ; of a State, Part ii. c. 
iv. p. 239, number of members, 
240, apportionment of members, 
240, qualification of members, 

240, incompatibility of office, 

241, election of members, 241, 
pay, 244, term of office of mem- 
bers, 242, time of meeting, 242, 
adjournment, 242, 244, privi- 
leges of members, 242, freedom 
of debate, 243, each House, pow- 
ers, 244, to judge as to its mem- 
bers, 244, contested elections, 
244, quorum, 244, officers, 240, 
rules of proceeding, 244, may 
punish its members, 244 — 5, 
may expel its members, 244, to 
sit with open doors, 245, journal 
of, 246, yeas and nays, 245, to 
adjourn, 247, may punish con- 
tempt, 245, vacancies, how filled, 
241, members not impeached, 
248, not to be interested, 250, 
indictable for misdemeanor, 304, 
protest, 247, powers of, in gene- 
ral, 258. 

Legislature Powers. how limit- 
ed^ 248, express or implied, 248, 



INDEX. 



833 



prohibited to, 243, concurrent, 
44, 87, power of appointment, 
248, impeachment before, 250, 
248, mode of passing: laws, 266. 

Legislature continued. Powers and 
duties as to revenue, taxes, 250, 
election of Senators and Repre- 
sentatives in Congress, 250; as 
to appropriation of money, 251 ; 
as to State debts and loans, 251 ; 
as to corporations, 252 ; as to 
currency, 253 ; as to banks, 
253 ; as to cities and boroughs, 
as to Treasury, 255 ; as to edu- 
cation, 255 — 6 ; as to diffusion 
of knowledge, 257 , as to pub- 
lic libraries, 257 ; as to asylums, 
&c., 257 ; as to lotteries, 257 ; 
as to divorces, 257 ; as to rights 
of married women, 258 ; as to 
the rate of interest, usury, 258 ; 
as to private laws, 259 ; as to 
suits against the State, 259 ; as 
to taking private property for 
public use, 259 ; as to slaves, 
260 ; as to compensation of offi- 
ces, 261 ; as to free negroes and 
mulattoes, 261 ; as to entail- 
ments, 261 ; as to right of pri- 
mogeniture, 261 ; as to internal 
improvements, 263 ; as to re- 
jected bills, 263. 

Libel, law, 222, State cons. 222. 

Liberty, religious, 121.218 — 9, of 
speech and press, 121. 

Libraries public, cons, provision, 
257. 

Lieutenant Governors, see Gover- 
nors. 

Lotteries, 257. 

Mail, see Post Office. 

Manifest, what, 90. 

Manufactures domestic, see Ta- 
riff. 

Majority of votes when necessary 
to elect, 301, see Plurality ; of 
age, 211. 

Maritime jurisdiction, 172. 

Married women, rights of, 258, 211. 

Marque and reprisal, 104, 123; 

Marshal of U. S., 189. 

Martial law, 234, 



Mayor, 329. 

Mayor's Court, 320. 

Measures and weights, power of 
Congress, 101. 

Military, subordinate, 234. 

Military Academy, power of Con- 
gress, 105. 

Militia, cons, provision, 233. 

Militia, power of Congress, 105, 
127, power of President, 106. 

Mines, leard, on public lands, re- 
served to U. S., 108. 

Ministers, foreign, 161, 104, of U. 
S. to foreign countries, 161, 104,. 
see Treaties. 

Minor, see Infant. 

Mint of U. S., 60. 

Misdemeanor, officers indictable 
for, 304. 

Missouri Act, admitting. 111, 118. 

Mobs,- power to suppress, 313, see 
posse comiiaius, Sheriff. 

Monopoly, no, 232. 

Monarchy, definition, 35. 

Money, power of Congress to coin, 
&c., 100 ; to fix value of foreign, 
100. to borrow, 92 ; prohibited 
to States, 100 ; legal tender, 
100, 128, of U. S., only paid ou 
appropriation, 92, 323. 

Month in law, 213. 

Mortgages, to be recorded, 313, 
lien of, 313. 

Mulattoes, see Negroes. 

Municipal law, definition, 202, see 
Law. 

Municipal corporations, 209. 

National bank, see Bank. 
Nations, law of, see Law of Na- 
tions. 
Naturalization of aliens, 50, 97, 

rights of naturalized citizens, 52. 
Navigation, power of Congress, 

93, 95, laws, 97, see Commerce. 
Navy, power of Congress, 105, 

Department, 160. 

Secretary of, 160 J prohibition, 

103, 123. 
National character, of ships and 

seamen, 97. 
Neglect, officers indictable for, 304. 



334 



INDEX, 



Negroes, slaves, 51, 118, 261; 
rights of free, 51, 212, see Slaves. 
Negative, see Veto. 
jSTobility, see Titles of Nobility. 
N'otaries Public, 314 

Oath, to support constitution of U. 
S., 46, 157, 303 ; .how adminis- 
tered, 220, right of conscience, 

220, of a State. 294, of of&ce, 
157, 160_, 241, 301. 

Offences criminal, 102, 104, against 
U. S., 176, political, 70. 

Officers, of IT. S., 155, 149, no ti- 
tle, &c.; from foreign prince, 121, 

221, appointment of, 149, how- 
commissioned, 156, removal of 
149, vacancies how filled, 149, 
executive officers, 149, no religi- 
ous test, 156, oath of office, 157, 
166, tenure of good behaviour, 
156, impeachment of, 157, in- 
dictable for neglect or misde- 
meanor, 70, no interest in claims 
or contracts, 166, no extra pay, 
166, titles, 166, agents of peo- 
ple, 42, interest in public con- 
tracts, 79, offences by, 104. 

Officers of a State, constitutional, 
294 ; judicial or executive, 254, 
civil or military, 294, appoint- 
ment, 294, election of, 294, ap- 
pointed by legislature, 294, by 
Governor, 294, qualifications of, 
294, tenure of office, 232, 301; im- 
peachment of, 301, removal of, 
232, oath of office, see Oath, 
incompatibility, see Offices, no 
religious test, 121, 295, in- 
dictable for neglect and misde- 
meanor, 304, term of office, 301, 
compensation, 261, religious 
sentiments, 295, bribery, 295. 

Offices, under U. S., power to cre- 
ate, 150, in a State, power to 
create, 294, eligibility, 232, 303, 
no hereditary, 221, constituti- 
onal, 294, tenure of, under U. 
S., 155, in a State, 301, incom- 
patibility, cons, of U. S., 78, in 
the States, 241. 

Oligarchy, 35. 

Ordinance of 1787, 118, 212. 



Orphans' Court, see Judiciary. 
Overseers of Poor, 317. 
Oyer and Terminer, 230. 

Pardon and reprieve, by President 

of U, S,, 148, before conviction, 

148, Governors of States, 276. 
Passports, violation of, 104, to 

ships, 97. 
Patent Office of U. S., 101. 
Patent right, definition, 101, law 

securing, 101. 
Paupers, see Poor. 
Path Masters, 317. 
Peace, see Conservators of the 

Peace. 
People, supreme power of, 42, 192, 

163, 199; reserved rights of, 45, 

194, see Bill of Rights. 
Permit, what, 90. 
Persons, division, of, 208. 
Peremptory rights, 139, 138, 214. 
Perpetuities, no, 232. 
Petition, right of, 121, 223. 
Piracy, definition, 94, 102, power 

of Congress, 94, 118, slave trade, 

93—4, 104. 
Plurality of votes, 301. 
Political offences, 70. 
Posse comiiaius, 313, power of 

Sheriff, &o., to suppress riots 

and mobs, 313. 
Police, county board, 311. 
Ports, no preference, 122, offences 

against, 104. 
Post Offices and roads, power of 

Congress, 101, construction of 

provision, 101, offences ag'st 104. 
Post Office department, 161. 
Post Master General, 161. 
Polls at elections, 301, book, 301. 
Poll tax, power of Congress, 120. 
Poor, support of, 314, directors o^ 

314, 317. 
Private property, security of, see 

Property. 
Powers of general Government, 

43, classification of, 44, 113, of 
Congress, 64, 84, classification 
of, 44. enumerated and express, 
45, 84, incidental and implied, 

44, 113, nature of, 85, 44, result- 
ing, 87, exclusive, 45, 87, con- 



INDEX. 



335 



current, 45, 87, reserved, 44, 45, 
no constructive, 87, prohibited to 
general gov't., 118, 44, 85; to 
Congress, 118, to the States, 44, 
123, in several departments, 44, 
47, of State governments, 192. 

Preamble of federal cons, con- 
struction of, 61, of laws, 61. 

President of the U. S., Part i. c. 
viii. 143, qualifications, 144, 
mode of election, 144, electors 
of, 144, qualifications, 145, how 
appointed or elected, 144, when 
elected, 144, college of, 145, how 
to vote, 145, day of counting 
votes, 145, election by House of 
Representatives, 145, term of 
office, 146. 

President of U. S., oath of office, 
144, compensation, 147, power 
as to army and navy, 105, 147, 
the militia, 106, 147, may call 
out militia, &c., 106, 147, opini- 
ons of Heads of Department, 
148, power of pardon and re- 
prieve, 148, power of appoint- 
ment, 149, of removal, 149, veto 
power, 114, 151, power to con- 
vene Congress, 151, to adjourn 
Congress 151, messages to Con- 
gress, 151, to receive Ambassa- 
dors, &c., 151, impeachment of, 
152, vacancy in office, 157, how 
filled, 157. 

Press, freedom of, 121, 222. 

Presentment, see Indictment. 

Primogeniture, 237, 261. 

Priority, of deeds recorded, 313, 
Mortgages, 313. 

Prisons, see Gaols. 

Prisoners,constitutional provisions, 
224, see Accused. 

Privateers, what, 104, power of 
Congress, 104, 123. 

Privilege from arrest, of members 
of Congress, and State legisla- 
tures, 77, 243, from attending 
suits, 243. 

Privilege, of members of Con- 
gress, 77, 243. 

Probate, judges, 312. 

Process, see Law ; to be in the 
name of the State, 293. 



Prohibited powers, see Powers. 

Proof, see Evidence. 

Property, private, not taken for 
use, 121, 224, without compen- 
sation, 259, security of, 121, 224. 

Proprietary governments, 39. 

Prosecuting Attorn ies, 314. 

Prosecution, see Accused Persons , 
Trial by jury; in name of State, 
293. 

Protection of citizens, 46, 97. 

Protection of the States, 137, of 
domestic industry, see Tariff. 

Protest, by members of Legisla- 
ture, 248. 

Provincial governments, 38. 

Prothonotaries, 290, 312. 

Public acts and records of a State, 
effect of, in every other State, 
113, 133, how proved, 133. 

Public lands, see Vacant Lands. 

Public use, private property not 
taken for, &c., 141. 

Punishments excessive, prohibited, 
141, 230. 



Qualifications, see Elections, Offi- 
cers. 

Quartering of soldiers, constituti- 
onal provisions, 141, 234. 

Quorum, what, 81, in Congress, 
81, in State legislatures, 244. 



Ratio, of Representatives in Con- 
gress, 75, members in State le- 
gislatures, 240. 

Rates and levies, county, 310, 
township, 316. 

Recorder, county, 313. 

Records, see Deeds. Evidence, 
133, of one State in another, 113. 

Redress, right of, in courts, 140, 
236. 

Register, as to public lands of U. 
S., 107, in Treasury of U. S., 
160. 

Register, county, 312. 

Register's Court, see Judiciary. 

Registry, of ships, 97, see Navi- 



gation. 



336 



INDEX. 



Religion^ no establishmeut of, 121, 
toleration, 220, 295, no religious 
test, 121. 156, liberty of, 121, 
213, 

Remedy, right of, in courts, 140, 
236. 

Removal, see Officers. 

Reprieve, see Pardon. 

Representation, principle of, 42, 
48, 193; and taxes, 120, in 
government of, U. S., 48, in 
Congress, 64 — 5, 72, see Ratio. 

Representatives in Congress, 73, 
apportionment of, 73, election 
of, 72, House of, 72. 

Representatives, House of, ii 
States, see Legislature. 

Republic, definition, 35, U. S., a fe- 
deral republic, 35, eacb State a 
republic, 192, guarantee to each 
State, 111, 136. 

Reserved powers, 45, 113, 142. 

Revenue, see Taxes ; bills in Con- 
gress, 83, 88, 91 ; laws, 90. 

Revolution, American, 37, 40. 

Revolutionary government, 39, 40. 

Rights, see Bill of Rights : equality 
of, 42—3, 216. 

Right of petition, see Petition. 

Right of people to assemble, 222. 

Right to bear arms, 141, 233. 

Right of suffrage, 230, of free col- 
ored persons, 51, 212, 261. 

Rights secured by cons, of U. S., 
45, 139, declared, 45, 138, 139. 

Rivers, power of Congress, 95, ju- 
risdiction of U. S. courts, 95, 
102. 

Roads, power of Congress, 101, ju- 
risdiction of States over national 
85, ]^asters, 317, Supervisors 
roads, 316, Path Masters, 317. 

Rules of proceeding, in Congress, 
82, in State legislature, 266, 244. 

Sabbath, recognized in federal con- 
stitution, 24, cons, provisions, 
235, 255. 

Safe, conducts, violation of, 104. 

Salaries, see Officers ; see titles of 
the different officers. 

Salt springs, on public lands, re- 
served to U. S., 108. 



Schools, common, 235, provision 
of cons. 235. 

Common School Fund, 318. 
State appropriation, 318. 
Superintendent, 318, 269. 
Districts, 318. 
Directors. 318. 
Taxes, 318. 

Seals, public of U. S., 158, State, 
292, county, 310—11. 

Seamen, 95, see Commerce. 

Searches and seizures, see Arrest, 
constitution of U. S., 139, of 
the States, 224. 

Seas, high, what, 95, jurisdiction 
over, 95, 102. 

Seat of government of U. S., 106, 
49, see District of Columbia. 

Secede, a State cannot secede 
from the Union, 46, 196. 

Secretary of State, of U. S., 158, 
department of, 158. 

Secretary of the navy, see Navy. 

Secretary of War, see War. 

Secretary of Treasury ofU. S., see 
Treasury. 

Secretarv of State, in the States, 
306. 

Security, from unlawful arrests, 
139, of private property against 
public use, 141, 224, 259, of con- 
tracts, 124, 141, 224—25. 

Sedition, see Insurrection. 

Seizures, see Searches, Arrest. 

Selectmen, 316. 

Seminaries, see Colleges. 

Senate, of U. S., see Congress. 

Senate, see Legislature. 

Settlement of paupers, see Poor. 

Sheriff, 190, 313. 

Ships, see Revenue, Commerce, Na- 
vigation ; National character, 97- 

Slaves, 51, 118, 212 ; representa- 
tion in Congress on number of. 
73, fugitive, how recovered, 128, 
Acts of Congress, 128, construc- 
tion of, 128, importation of, pro- 
hibited, 118, piracy, 93 — 4, re- 
strictions on new States, 112, no 
slavery in N. W. Territory, 112. 
slavery in Louisiana territory 
limited, 112, slave trade, 93. 
slavery in the States, 212, law 



,/ 



INDEX. 



337 



of, 212, in District of Columbia, 
51. 

Smuggling, 90. 

Solicitor of Treasury ofU. S., 160. 

Soldiers, quartering, 141, 234. 

Sovereign, U. S., government, not, 
43, 45, States not, in what sense, 
43. 

Speech, freedom of, see Freedom. 

Speech, liberty, 222. 

Standard of weights and measures, 
101. 

States and State officers, 292, 305. 

State Treasurer, 307. 

State Department, of U. S., 158, of 
States, 30G. 

States, when became independent, 
37, 193 — 4, original, 37, names, 
52, relations to the Union, 46, 
194, 192, to each other, 195, 
192; not sovereign, how, 43, 
197, administration, 292, nature 
of governments, 192, republics, 
192, constitutions of, 193, taxes 
in, see Taxes ; republican gov- 
ernment guaranteed, 111, 136, 
protection of, from invasion, 105, 
against domestic violence, 105, 
cannot secede from Union, 46, 
196, new, admission of, 49, 111, 
out of foreign territory, 49, pow- 
ers prohibited, 123, citizens of, 
46, 134, 36 ; represented in gen- 
eral government, 43. 

Statute, see Laws, 

Stock, of U. S., State tax on un- 
constitutional, 91. 

Stock, State, what, 306. 

Stock, taxable in, 305. 

Suit, not against U. S., 160 ; nor 
State, 175, against State, 235, 
259. 

Suffrage, right of, see Elections. 

Sunday, see Sabbath. 

Super't of Common Schools, 305. 

Supervisors of roads, 316. 

Supreme power of people, see 
People. 

Suspension of laws, no power, 235. 

Surveyor General of U. S., 107, 
State, 308, 314. 

Surveyors, deputies, 308, county, 
314. 



Tariff, what, 91, power of Con- 
gress, 91. 

Taxes, definition, 88, direct and 
indirect, 89, imposts, 88, duties, 
89, poll or capitation, 89, 120, 
excise, 89, apportioned among 
the States, 74, 89, according to 
federal population, 74, 89, 120 ; 
to be uniform, 89. 

Taxes, not on exports, 120, collec- 
tion of 89, 

Power of Congress, 88, 120. 
Power of States, 250. 
Prohibition on States, 91, 120. 
Tariff, power of Congress, 91. 
State, on Bank of U. S., uncon- 
stitutional, 91, and on stocks of 
U. S., 91. 

Taxes State, power of States, 250, 
different kinds in a State, 305, 
objects of taxation, 305. 

Taxes county, 310. 

Taxes township, 316 — 17. 

Taxables, see Census j enumeration 
of, 74. 

Tender legal, 100. 

Territory of U. S., 49, 96, 107, 109, 
offences in, 303, 109, tax may 
be laid by Congress, 91, general 
power of Congress, 97, vacant 
lands, 108 — 9, 97 ; power to ac- 
quire foreign territory, 49, 97, 
109. 

Territorial governments, 48, 109, 
delegates in Congress, 109, 115, 
power of Congress, 110, 103. 

Time, what is a year, 213, a month, 
213, a day, 218, 

Titles of nobility, not to be grant- 
ed, 121, 127, 221 ; officers not 
accept, 121, 127, of office, 166, 
Title to land, 237. 

Toleration of religion, seeKeligion. 

Tonage, definition of, 91, States 
not to lay duty on, 91, 128. 

Townships, 315, corporate bodies, 
315, officers of, 315, taxes in, see 
Taxes, 316. 

Towns, same as townships in some 
States, 316. 

Township clerk, 314, 317. 

Treasurer of U. S., 159. 



338 



INDEX. 



Treasury of U. S., Sec'ry of, 159, 
161, 121; no, money drawn out 
but by law, 92, receipts and ex- 
penditures published, 91, depart- 
ment, 159, auditors of, 159. solici- 
tor, 160, assistant, 160. 

Treasury of a State, 307, no money 
drawn, kc, 255, receipts and 
expenditures published, 307. 

Treasurer of a State, 307. 

Treasurer, county, 312. 

Treason against U. S., 24, 103, 
109. 

Treatise, definition, 203, how ne- 
gotiated, l-iS, power of Presi- 
dent, &c., 149, of the Senate of 
U. S., 72, authority of, 149, 202, 
as to foreign territory, 111, 
States not to form, &c., 121. 

Trial by jury, cons. 178, 224, 32, 
33, 139—40, 171 ; State consti- 
tutions, 000. 

Troops, see Army. 

Trustees, county, 311, township, 
316. 

Union, perpetual, 46, government 
of, 36, 46, new States admitted 
into. 111, out of foreign terri- 
tory, 111, a State cannot secede 
from, 46, 196. 

United States, a republic, 36, gov- 
ernment of, how formed, 36, 42, 
•when became independent, 36, 
meaning of, 36, 46, territory, 46, 
49, 109, no suit against, 160, 
claims on, 160. 

Uniformity of laws, 237, 89. 

Usury, 258. 

Vacant lands of U. S., 108, how 
acquired, 108, Session of the 
States, 108, survey and sale of, 
108. 



Vacant Lands, salt springs and 
lead mines, 108, power of 
general government to pur- 
chase, 108 — 9, General Land 
Office, of U. S., 107, Sur- 
veyor General, 108, fund for 
common benefit of the Union. 
108. 

Veto, meaning of, 151, of Pre- 
sident of U. S., 151, of State 
Governors, 275. 

Vice President, how elected, 153, 
qualification, 153, term of office, 
153, compensation, 154, Presi- 
dent of Senate of U. S., 154, 
when to act as President of U. 
S., 154, impeachment of, 154, 
vacancy in office, how filledj 
155. 

Voting, see Elections. 

War, power of Congress to declare, 
104, prohibition on the States, 
123, Secretary of War, 159, De- 
partment 159. 

Warrants to be on oath, 140, 

Weights and measures, power of 
Congress to fix standard ot^ 101, 
Acts of Congress, 101, 

Wife, see Females. 

Wills, see Registers. 

Witness, right of accused person 
to have process for, 139, accused 
not compelled to be witness 
against himself, 139, not to be 
imprisoned, 237. 

Woman, see Females. 

Writ of Error, meaning, 170 — 1. 

Year, what in law, 213. 
Yeas and nays, what, 83. 

in Congress, 83. 

in States, 245. 



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